You mean that the Federal Circuit actually followed Congressional intent and the statutory law (35 USC 101) -- apparently against the wishes of the Supreme Court.

Foolishness. Section 101 is broader than you give it credit for. Patent attorneys love to overlook the language.

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

One may very well look at the Alice patent (or any of a whole series of the business method/software cases) are realize that those claims are drawn to things that the patentees neither invented nor discovered, were not new at the time, etc. What's more Section 101 is entirely permissive "may obtain" which is hardly a requirement: shall or is entitled to, etc.

And, in any case, Congress is bounded by the Constitution's copyright clause: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (Art. I, Sec. 8, Cl. 8). Extending patent rights to abstract ideas, general principles, etc., would arguably be unconstitutional. So, to avoid the constitutional question, it's best to resolve the broad language against that patentability.

... at trial, yes. Not at the USPTO or before the PTAB.

I rarely care about non-issued patents, other than my own. Patent examiners can do their thing. Alice gives them a tool now too.

IPRs are a possible strategy. But people don't willy-nilly file those either. They're more part and parcel of modern patent litigation now to get a stay and hopefully wreck claims. A good IPR is still 5 figures.

And in KSR, SCOTUS pushed that way back. Now it's actually quite easy, unless the claims recite an element that you just can't find a reference for, anywhere.

And that's still an issue for mid- to late-90s patents. Words are different. Language is different. Experts and lawyer arguments are expensive.

Plus, a wealth of everyday computer stuff from the 90s is still pretty hard to come by or expensive or time consuming to retrieve.

That'd be an easy 103 rejection: you can prove it's been "done previously," right? You can prove that the platform existed previously, right? Where's the problem?

If that's all that was required, woo-boy.

How do you define "actually inventive"?

Here are the questions I ask when contemplating patent filings, post-Alice, for a software method (or computer implemented method):
* Can I reasonably determine the bits and pieces you put together a specific solution to a specific problem based on your claims?
* Do the claims give me all of the pieces of the puzzle or does it give me a flowchart?
* And, to entirely avoid an Alice question, are you using generic bits of technology for their ordinary purpose to solve an old problem the old way?

"Good" answers to these questions should avoid a 101 issue.

of which I've to actually see an example

Let me quickly respond to that point too. One recent victim (at least at the lower courts) was this patent: http://www.google.com/patents/.... The district court found the claims to upselling to an online buyer invalid under the Alice case. http://www.law360.com/articles...

One of the important things to realize is that that actually doesn't matter. The fact that the practice had been done in the real world before did, though. Merely gussing-up the language with technological tools didn't make it patent eligible. The court never gets to the issues under Sections 102 (anticipation) or 103 (obviousness) of the patent laws.

Joe Mullin at Arstechnica has a decent piece on the case: http://arstechnica.com/tech-po...

Those patents - of which I've to actually see an example - would already be invalid under 103:

I so hate this argument. Sure, they could be. The road to a 103 invalidity is an expensive and often arduous task that is often left to a jury. What's more, its met with a high burden and a presumption of validity. The Federal Circuit and patent lawyers have done a marvelous job making invalidity under 102/103 all but impossible except in the most extraordinary cases.

The point is: they shouldn't have been patent eligible in the first place. You can't take something done previously, stick it on a platform that's used for it's conventional purpose and suddenly you're in patent-eligibility land.

Now the burden, under 101, is for the inventor to show that which they did was actually inventive.

Good patents shouldn't have this issue. 101 should be a very, very low hurdle.

I read Patently-O. Thank you for all that you do. I'm also a patent attorney. I work in-house at a software company where I'm Chief IP counsel. I cannot help but think when reading patently-o (and PatentDocs and IPWatchdog and others) is that the readership is so skewed to patent attorneys who view the world as fundamentally formed around patents. When a patent attorney like myself makes any argument about the ludicrous nature by which the scope of patents has grown, either in comments or otherwise, it is mostly met with cries of being part of the anti-patent brigade.

What Alice has shown to me is that the generalist legal world (e.g., the one in which the SCOTUS lives) view patents with much, much more skepticism. In my opinion, rightfully so. Patent attorneys get their undies in a bunch about Alice-like precedent "violating" the territories of 102 and 103. But that misses the forest for the trees.

As you suggest, Alice is in but a long line of cases where the Supreme Court looks at the forest, not the trees. Recognizes the absurdity and attempts to restore some sanity.

Alice is a big deal. It's already dealt tough blows to some patents in currently pending cases. This is mostly a good thing. And the patents that Alice affects most are sort of the worst of the worst.

I want to address the last point:

Alice to turn software patents into 'draftsmen's art because as you and I have seen over the years, every time there's a court ruling it just means that you have to word the patent claims differently.'

This may well be the case. But I don't see that as a particularly bad issue. Among other things, the worst offenders were patents that issued between 1996 and 2006 where there is a huge number of "do such and such old thing on a [computer | web | network| mobile device]" as if the "such and such old thing" was suddenly now a patentable thing by virtue of a new platform. Alice will largely undo those patents.

I also think that the "draftsman's exercise" is likely to bring added meat to claims. It might not sound like much, but every single word that gets added to a claim is one more point of possible differentiation.

Agreed that it's not in the summary, but as you correctly note, it's just a "summary". Anyone who reads the underlying blog post will read this among the facts on which the court based its opinion: "The public was allowed to search by keyword. The search results showed only the page numbers for the search term and the number of times it appeared; none of the text was visible."

So those readers who RTFA will be in the know.

Don't I wish.

A cynic might argue that the key difference in this case was that, for a change, the ISP's, and not merely defendants, were challenging the subpoenas; but of course we all know that justice is 'blind'.

An ingrate might bemoan the Court's failure to address the key underlying fallacy in the "John Doe" cases, that because someone pays the bill for an internet account that automatically makes them a copyright infringer; but who's complaining over that slight omission?

A malcontent like myself might be a little unhappy that it took the courts ten (10) years to finally come to grips with the personal jurisdiction issue, which would have been obvious to 9 out of 10 second year law students from the get go, and I personally have been pointing it out and writing about it since 2005; but at least they finally did get there.

And a philosopher might wonder how much suffering might have been spared had the courts followed the law back in 2004 when the John Doe madness started; but of course I'm a lawyer, not a philosopher. :)

Bottom line, though: this is a good thing, a very good thing. Ten (10) years late in coming, but good nonetheless. - R.B. )

Insurance is a weird thing: it works because you pool a bunch of risk and spread the associated costs across all your insured. At the moment, Snapshot only gives discounts to those drivers that establish that they are in fact in the lowest risk pool: few miles driven, during "safe" times, in a "safe" manner (e.g., few hard stops). There's no incentive, currently, for otherwise safe drivers to participate -- such as those that drive too many miles.

However, I consider myself a safe driver but just have too many miles. Heck, I even have a dashcam (I don't live in Russia, either). But other than my clean driving record, I don't have any other driving behavior-based way to lower my risk profile or premium. I would LOVE if Progressive mandated Snapshot, increased rates of those that had poor overall driving techniques (fast acceleration, hard braking, etc.) and lowered the rates for the rest. People whose rates increased would likely flee Progressive, but the risk for the pool would go down (and with it my premiums). Mandated Snapshot won't happen of course for lots of non-obvious reasons, though.