The U.S. patent system has always struggled with how to deal
with software. Sometimes software patents were welcomed; sometimes
they were not.
In 2014, the U.S. Supreme Court issued its decision in Alice Corp. Pty. Ltd. v. CLS Bank Int'l
applying a two-part to test to determine if a patent was
unenforceable for claiming ineligible subject matter. Under this
two-part test, a court must first consider whether the claims are
directed to a patent ineligible concept such as an abstract idea,
and if so, the court should consider whether the claim's other
elements transform the nature of the claim into a patent eligible
concept.
After Alice, software patents were routinely challenged
using this test and found to be unenforceable. In the last year,
however, courts appear to be more reluctant to quickly find
software patents unenforceable. For example, the Federal
Circuit's 2018 decision in Berkheimer v. HP Inc.
softened the effect of Alice by holding that the second
part
