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    Software Patents Are Against the First Amendment?

    The end may be nearing for software patents which have been highly controversial in the tech industry for some time. The verdict issued on Friday by the U.S Court of Appeals for the Federal Circuit, found that three patents asserted against anti-virus companies were patent-ineligible under 35 U.S.C. § 101 and that they did not pronounce a patentable invention. The patents were owned by Intellectual Ventures, which has a standing in the tech world as “patent troll”.

    In the concurring opinion, Judge Haldane Robert Mayer indicated that patent law must provide similar safeguards as copyright law has in-built first amendment protection called the “fair use”. Judge Mayer states that “(1) patents constricting the essential channels of online communication run afoul of the First Amendment. (2) Claims directed to the software implemented on a generic computer are categorically not eligible for a patent.”

    Considering the decision made by the Supreme Court in 2014 known as “Alice” covering patentable subject matter, Judge Mayer inferred that software is not patentable. “Software lies in the antechamber of patentable invention. Because generically-implemented software is an “idea” insufficiently linked to any defining physical structure other than a standard computer, it is a precursor to technology rather than technology itself”, says Judge Mayer.

    This does not mean that there will be an immediate end to software patents as this opinion was the concurring opinion. Even now the legal authorities from relevant courts are skeptical about patenting software and the chances of rejections are high.

    As per Maxval’s research and USPTO data the case details are as below:

     Type  Name
    Court CAFC
    Plaintiff Intellectual Ventures I LLC
    Plaintiff Attorney Brooke Ashley May Taylor
    Defendant Symantec Corp.|Trend Micro Incorporated|Trend Micro, Inc. (USA)|Intel Corporation
    Defendant Attorney Dean G. Dunlavey
    Defendant Law Firm Latham & Watkins LLP
    Product Anti-virus and Internet security products
    Patent US5987610|US6073142|US6460050|US7506155
    Closed date 9/30/2016
    Basis of Termination Affirmed-in-Part and Reversed-in-Part

    For more details, please click on the case links:

    http://litigation.maxval-ip.com/Litigation/DetailView?CaseID=7PjozxHUWm8%3d
    http://litigation.maxval-ip.com/Litigation/DetailView?CaseID=c3hlZj0QJB8%3d
    http://litigation.maxval-ip.com/Litigation/DetailView?CaseID=N6J_Pa908VM%3d

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