A Proposal to Revise the Alice Test for Software Patents

Most human innovations begin from an abstraction, a judicial exception that by itself is not patent-eligible. Abstract ideas are considered basic tools of scientific and technological work, which courts prefer not to award with a monopoly because exclusive ownership of these essential elements would only serve to hinder economic and innovative progress. The problem concerning patent eligibility under §101 is that we do not have any measurement or indicator to differentiate when a claim consists of only an abstract idea and when a claim does not. Currently, courts rely on precedent that is ambiguous rather than relying on more concrete measures based on the specific type of underlying software. Lacking this measurement, coupled with inherent software complexity, has resulted in inconsistent jurisprudence that is often inscrutable. These inconsistencies in the jurisprudence of cases involving computer programs stem from lacking a proper framework based on the functional nature of computer programs. There are several different proposals with inconsistent explanations as to how to apply the judicially created framework in determining patent eligibility. Still, none of them suggest a practical test specifically for software fields based on the functional nature of computer software to solve the patent eligibility problem. Additionally, proper disclosures are needed to combat high invalidity rates due to the lack of quality of patent applications.This study addressed the confusion regarding the existing judicial framework (Alice’s framework) in determining patent eligibility (§101) of software inventions. It proposed a new framework for determining patent eligibility in which the meaning of an abstract idea is defined in a practical way, as routine building blocks, based on the functional characteristics of software programs. These routine building blocks are not patent-eligible because the only embodiment is its fundamental components that are common in all inven