The latest round in the patent wars is taking place on the wrong battlefield, as the U.S. Supreme Court prepares to rule on patent eligibility in Alice Corporation Pty. Ltd. v. CLS Bank International. The question at issue—whether and to what extent software should be eligible for patent protection—is one that should be answered not by the court, but by Congress.
While the question of subject matter eligibility is not new, it historically took a back seat to more substantive issues such as what was “new enough” for a patent and what activities by third parties were actionable as infringement. Occasionally, inventors would reach too broadly.
