Enlarge / Under the Federal Circuit appeals court, patent law swung from software patent skepticism in the 1970s to extreme permissiveness in the 1990s, then started to swing back toward skepticism with stricter Supreme Court oversight. (credit: Federal Circuit Historical Society / Aurich Lawson)
Forty years ago this week, in the case of Parker v. Flook, the US Supreme Court came close to banning software patents. “The court said, ‘Well, software is just math; you can’t patent math,'” said Stanford legal scholar Mark Lemley. As a result, “It was close to impossible in the 1970s to get software patents.”
If the courts had faithfully applied the principles behind the Flook ruling over the last 40 years, there would be far fewer software patents on the books today. But that’s not how things turned out. By 2000, other US courts had dismantled meaningful limits on patenting software—a situation exemplified by Amazon’s infamous 1999 patent on the concept of shopping with one click. Software patents proliferated, and patent trolls became a serious problem.
But the pendulum eventually swung the other way. A landmark 2014 Supreme Court decision called CLS Bank v. Alice—which also marks its anniversary this week—set off an earthquake in the software patent world. In the first three years after Alice, the Federal Circuit Court, which hears all patent law appeals, rejected 92.3 percent of the patents challenged under the Alice precedent.
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