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Federal Circuit Appeals Court Finds 3rd Case of Eligible Subject Matter in Software

Jim Ruttler, Patent Attorney

Posted Monday, June 27, 2016 by Jim Ruttler

The Federal Circuit today issued its decision in Bascomb where it found for the third time that software can be patent eligible. After the broad language of the Supreme Court decision in Alice, many thought that software could be no longer patent eligible. The appeals court in charge of patents has again stated that this is not the case and that software remains patent eligible.

Here, the claims in Bascomb were directed toward a network traffic filtering system. Older systems placed the filtering software on the client, which allowed for customization. Some efforts at centralizing the filtration software on servers had resulted in a one-size-fits-all approach. The claims here solved that problem by allowing customization of filtration rules while centrally locating the filtering software.

The Court held that while filtering was something old and well known, the specific application here added more and didn’t preempt all filtering.

Judge Newman issued a concurring opinion calling for the need to return to a focus of the statute and on novelty and non-obviousness instead of eligibility. The eligibility test has become unpredictable and is conflating other areas of the Patent Act. This reflection is accurate and welcome in what has become a really confusing area of the law.

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