Three recent cases remind the patent trial bar that, although
software patents can be subject to challenge under Section 101 of
the Patent Act, they are not automatically invalid. In
Ultramercial, Inc. et al. v. Wildtangent, Inc., et al.,
Appeal No. 2010-1544, 2014 WL 5904902 (Nov. 14, 2014), the Federal
Circuit affirmed Ultramercial's video advertising patent was
invalid under Section 101. Two district court decisions earlier in
the month, however, rejected Section 101 challenges to software
patent claims. These three cases provide guidance as to how to
frame (or resist) Section 101 challenges.
Under Section 101 of the Patent Act, a patent can be had on
"any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement
thereof[.]" 35 U.S.C. § 101. The Supreme Court, however,
has reaffirmed that Section 101 contains an important, implicit
limitation. "Laws of nature, natural phenomenon, and abstract
ideas are not
