Is the Federal Circuit Killing Software Patents?
In addition to a litany of inventions that have fallen as patent ineligible under the Supreme Court’s Alice-Mayo framework, the Federal Circuit recently ruled — over a strong dissent by Judge Newman — that a digital camera was both abstract and patent ineligible. Remarkably, the claim in Yu v. Apple, 2020-1760 (Fed. Cir. June 11, 2021), recited image sensors, lenses that are mounted to the image sensors, a digital image processor and even analog-to-digital converting circuits. So, how could such a claim be abstract?
Presently, we await decision from the Supreme Court on whether the petition for certiorari in American Axle will be accepted by the Court.
Regardless of whether the Supreme Court decides to weigh in, there will be much to discuss in terms of potential legislation to reform 35 U.S.C. 101, the continued viability of software patents in the United States in the absence of a Congressional or Supreme Court fix, and the latest twists and turns from a Federal Circuit that cannot agree with itself and seems to have some panels that are gravitating toward finding ever more swaths of innovation patent ineligible.