New Fed. Circ. Guidance For Patenting Software Inventions

By Richard Marsh and Braden Katterheinrich (January 26, 2018, 12:49 PM EST) -- In Finjan Inc. v. Blue Coat Systems Inc., the Federal Circuit continues to refine its approach to patent eligibility under Alice v. CLS Bank, and solidifies a set of concrete criteria for determining when software-based inventions provide a technical improvement and thus become eligible for patent protection. In particular, Finjan demonstrates that patent eligibility for such inventions requires: (1) a distinct improvement over conventional approaches to a technical problem and (2) claims that recite particular means to accomplish that improvement, as opposed to claims that simply recite the improvement. While the application of these criteria will be a fact-specific inquiry, subject to the personal views of particular judges and examiners as additional "guidepost" cases emerge, Finjan will be an important contribution to the family of Federal Circuit decisions outlining a definitive patent-eligible "safe harbor" for inventions that claim a technical improvement....

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