Wednesday, March 21, 2018


Recent decisions indicate that the Federal Circuit Court of Appeals (the court that counts for Patent Law) may be moving toward a “technical arts” test for determining whether software (and business) methods are patent “eligible.”

In many ways this represents good news. For one thing, those of us advising Entrepreneurs can at last give a reasonably good forecast as to whether certain software methods will hit the patent eligibility road block. And if that trend continues (an “if” admittedly) it also tells those of us helping entrepreneurs what to focus the applications on (the technical merits of the idea).

The emerging (perhaps?) trend also lends Entrepreneurs a hand in determining whether to move forward with a patent application for their ideas. And, on a similar note, it helps them identify what to focus on in their discussions with their Patent Attorney. In particular, both the Entrepreneur and Patent Attorney should focus on how the idea helps a computer work better. Better, of course, can be defined in terms of faster, more efficiently, more reliably, and/or doing some other technical feat not previously possible.

The first three points should be self-explanatory. But, perhaps, the latter point needs a little elaboration. In one case, the Fed Circuit found a “self-referential” database to be patent eligible. In short, this new technology included a feature in the software that allowed a database to include a link to itself – self referential. And that was a enough to get that application over the eligibility threshold.

Thus, for now, we at the Villhard Patent Group continue to recommend moving forward with (at least provisional) patent applications for software/business methods. Of course, as we have written in other posts, Entrepreneurs in the software/business methods arena should be aware that patent eligibility will be an issue with their applications.

We at the Villhard Patent Group would welcome an opportunity to discuss this issue with you with regard to your idea. We can be reached at 512-897-0399 or For more information about us please see www.villhard We look forward to hearing from you soon.

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