Post-Bilski: Prosecuting Software Process Claims

Law360, New York (February 25, 2010, 12:38 PM EST) -- Before the Federal Circuit issued its Bilski decision in 2008, patent attorneys and agents reasonably believed that patent claims directed to (1) data structures or computer programs recorded on a computer-readable medium and (2) software processes are the types of claims that could be patented under 35 U.S.C. § 101.

This article offers strategies for responding to patent claim rejections post-Bilski where examiners have rejected software-based claims as being nonstatutory — i.e., not containing patentable subject matter.

Section 101 establishes the threshold for determining whether a...
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