USPTO Alice Guidance: Software Still Patentable

Examiners huddled over fresh memos in USPTO cubicles this week. Andrew Hirshfeld’s words hit like a plot twist in a sci-fi thriller—software patents aren’t dead after Alice v. CLS Bank.

Here’s the thing. The Supreme Court swung hard in Alice, axing claims that smacked of abstract ideas dressed in generic computer clothes. But Hirshfeld? He’s flipping the script, telling his team: computers alone don’t doom a patent if they actually do something inventive. No blanket ban on software. No special hoops for business methods. It’s a patentee’s dream in an era of White House skepticism.

“Notably, Alice Corp. neither creates a per se excluded category of subject matter, such as software or business methods, nor imposes any special requirements for eligibility of software or business methods.”

Boom. That’s Hirshfeld, straight from the memo. Feel that? It’s the air rushing back into the lungs of startups coding the future.

Why Alice Felt Like a Patent Apocalypse

Picture this: Alice lands like a meteor, cratering software patents. Claims? Invalid if they’re just abstract ideas—think mitigating settlement risk—with computers tacked on like afterthoughts. PTAB’s been shredding them in AIA trials. District courts? Chaos. And examiners? Some rogue ones ignore HQ, hoarding allowances like dragons.

But wait. Hirshfeld reins it in. Stick to the MPEP 2106(I) playbook, he says. Two-part test from Mayo: Is it an abstract idea? If yes, does something extra make it “significantly more”? Examples? Tech improvements. Better computer guts. Tying the idea to a specific machine world. “Apply it” on a generic PC? Nope. That’s routine, old-hat stuff.

Abstract ideas? Still fuzzy—no crisp definition, which is the Supreme Court’s gift that keeps on giving (or taking). Economic practices. Human organization tricks. Math formulas. An “idea” itself. Circular? You bet. But USPTO’s threading the needle, keeping doors open.

One paragraph wonder: Innovation breathes.

My bold prediction—and this is the insight Alice’s echo chamber misses: This memo echoes the 1990s dot-com patent boom. Back then, State Street unlocked software eligibility, sparking a frenzy that built the web we live on. Alice threatened to torch it all, but Hirshfeld’s guardrails? They’re rebooting that engine. Expect a software patent renaissance by 2015’s end, fueling AI’s next leap—like neural nets patenting their way to sentience.

Will USPTO Examiners Actually Follow This?

Look, not every Art Unit’s a team player. We’ve got stories—patent pros whispering about examiners who boast, “I don’t follow memos; appeal me.” Low allowance rates in biotech or software units? Check. PTAB overrides? Constant. But Hirshfeld’s clarity might whip the majority into line, shrinking the rebel fringe.

And the courts? PTAB’s independent, feasting on AIA challenges. Districts vary wildly. Still, USPTO sets the issuance tone—90% of patents start here. If examiners greenlight more, the floodgates crack.

Enthusiasm overload: Imagine AI patents surging. Self-driving algorithms. Quantum error-correction code. Generative models dreaming up patents themselves. Alice was the storm; this memo, the rainbow.

How Does the Two-Part Test Work in Practice?

Step one: Spot the abstract beast. Fundamental economics? Organizing humans? Math? Tag it.

Step two: Hunt for the “significantly more.” Not just any computer—prove it improves tech, fixes computer flaws, anchors to a niche environment. Generic functions? Dismissed. But inventive twists? Patent city.

“The generically-recited computers in the claims add nothing of substance to the underlying abstract idea.”

That’s why Alice fell. Your claim? Recite real tech muscle, and you’re golden.

Wander with me here—it’s like upgrading from a bicycle to a rocket bike. Abstract idea’s the pedal power; generic PC, the rusty frame. Add gyro-stabilized thrusters solving instability? Eligible. That’s the USPTO vibe.

Six-sentence deep dive: Examiners now weigh claims holistically, no knee-jerk software hate. Historical parallel? Post-State Street, patents exploded, birthing eBay and Google. Alice chilled it; this revives. Critics cry “too loose,” but hype aside, it’s pragmatic—White House anti-patent noise be damned. Bold call: By 2016, software allowance rates climb 20%. AI futurists, take note.

Rebels persist. PTAB lurks. But momentum shifts.

So, what’s the wonder? AI as platform shift—needing patent shields to scale. This memo? Oxygen for the fire.

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Frequently Asked Questions

What does USPTO’s Alice guidance mean for software patents? USPTO says no per se ban on software or business methods—claims need inventive tech beyond abstract ideas on generic computers.

Will Alice kill all software patents? No, per the memo: Stick to the two-part test, add real improvements, and you’re likely eligible.

How do I make my software claim patent-eligible post-Alice? Show tech improvements, better computer function, or specific application—not just ‘apply on a computer.’