The recent US Supreme Court decision of Alice v. CLS Bank has specificed a Section 101 framework in which software patents must now be examined. The court has enumerated two questions that must be asked in a software patent:
1. Does the claim merely cover an “abstract idea”?
2. Is there an (additional) “inventive concept” that turns this idea into a patentable application of the abstraction?
This decision does not eliminate the possibility of software patents but certainly leaves their patentability uncertain and open to challenge.
The recent case of Motio Inc. vs. Avnet Inc. has provided one example of how to circumvent this issue. In that case the court found the that the “inventive concept” was an “automated agent” eligible for patent protection.