Washington – The Supreme Court may take up a case that many are hoping could resolve a division within the U.S. Court of Appeals for the Federal Circuit on patent eligibility of software. About half of the court has been following the Supreme Court’s guidance from the recent cases Bilski v. Kappos and Mayo v. Prometheus, but several members of the Federal Circuit are still using a test that results in nearly any software being able to obtain a patent.

The Computer & Communications Industry Association filed an amicus brief, pointing out that the lower court’s ruling is inconsistent with the Supreme Court’s decision in Mayo and asked that the court grant WildTangent’s petition to review that decision.

The following can be attributed to CCIA Patent Counsel Matt Levy:

“This case is an opportunity for the court to clarify when software should be eligible for a patent versus when someone is trying to patent an abstract idea such as the way of displaying ads that is at the root of this case. This problem is one of the main contributors to the current patent crisis. With the division in the Federal Circuit over applying current legal precedents on software patents, the Supreme Court is the only hope of fixing this problem.

In the court brief, Levy noted that this case matters to growing number of businesses and end users who are being attacked by patent trolls, or patent assertion entities (PAE). Levy explained in the brief why letting the lower court decision stand would make the PAE problem even worse:

“First, because the court held that patent-eligibility requires factual determinations, it will be much harder to successfully dismiss a case on the pleadings, even if a patent claims patent-ineligible subject matter.  And the near-impossibility of determining whether a patent is abstract due to the conflicting decisions in the Federal Circuit gives PAEs additional leverage to extract settlements.”

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