Alice Doesn’t Patent Here Anymore

The U.S. Supreme Court’s Alice decision and the Patent Office’s draconian rule making implementing that case have had and are having a devastating effect on software-implemented innovation in America – even though Justice Thomas made no mention of software in his opinion.  Supreme Court words have that effect.

Soon afterward the decision, perfunctory 35 U.S.C. 101 rejections from the USPTO were created and now pervade the practice, attacking anything that includes software.  Various task forces within the intellectual property bar communities are still trying to assess the damage. Speaking with the Patent Office examiners in the software and business method art units, they say that their hands are tied so to speak by these harsh rules.  To be fair, the USPTO was forced to implement these rules by White House decree.

Alas, we have seen all of this before.  At the birth of the software industry in the Sixties and early Seventies, the Supreme Court then cast a negative shadow on the eligibility of any software-implemented innovations.  Indeed, Gottschalk v. Benson (1972) set the tone for software patenting – no.  Subsequent decisions by the Court echoed this view, and even though the Court upheld a software patent in 1981, the anti-software patenting die was cast – until 1998 that is when the floodgates were opened by the Federal Circuit’s State Street Bank case.

America is clearly the leader in software development.  We originated modern coding and our multitude of software products demonstrate this.  The explosion of the Internet created entirely new paradigms of business, and innovators and entrepreneurs tried to obtain patents on much of the new terrain.  Aided by the Federal Circuit’s positive view toward software-implemented innovation (but not abstraction), the software industry grew since companies could protect their code products.  Now, large corporations have developed from these industries, and upstart software developers of today out to change the established paradigm are unwanted.  Unsurprisingly, lobbyists from some of these same large corporations have been decrying the patent system, wanting to make changes to patent law to prevent any further garage-inventors from succeeding. To them, the patent system needs perpetual reform to cripple the future.

The Justices in Alice, a unanimous decision, thought that they were doing their part to curb the rampant abuses by those greedy patent trolls and reign in the Federal Circuit too.  But words have consequences.  Alas, just as the Court’s decision in 1972 had a chilling effect on the patenting of new technologies, so, too, the Alice case is destroying the chances of many innovators to succeed against the competition.  Incredible new technologies are being developed, many on the edge of abstractness – and thus running afoul of Alice.  Advances in personalized medicine and many, many other amazing new technologies are out there in the minds of visionaries, who are not always in corporations. With the new anti-software patent bias it is hard to protect and foster such ideas into new industries.

American ingenuity and gumption are part of our collective history. The Supreme Court and the USPTO are playing with our nation’s prosperity by their actions, words and rules.  Congress, instead of acting at the behest of anti-troll lobbyists to craft even more anti-patent system legislation, further tilting the playing field toward the large corporations, should be working hard to protect American innovation and the jobs and industries generated.  Alice used to patent her new innovations.  Now, she and so many other visionaries don’t see the point, and don’t work to invent here anymore.

Raymond Van Dyke,,

To Kill a Patent System: What Would Atticus Finch Do?

Last Wednesday I had the privilege to speak about the importance of Intellectual Property in Washington, DC.  As Chair of the Greater Washington, DC Chapter of the Licensing Executives Society, I and a friend, Sanjay Prasad, conducted the Introduction to IP and Licensing Course for LES. Here is the link:

The Course is a good introduction to the mechanics of licensing of IP assets.  Please contact me or LES (www.les,org) to learn more about these programs which explore many more and advanced licensing topics.

That evening, I also spoke, with guest Todd Dickinson, on the ongoing challenges to the U.S. patent system in a talk called “To Kill a Patent System; What Would Atticus Finch Do?.”  Here is the link:

Current bills in the House and Senate aim to impair and perhaps destroy key components of the U.S. patent system – through intended and perhaps unintended consequences.  Even though lobbyists for several tech companies are actively pushing for ways to gut the patent system, hopefully Congress can see beyond the hyperbole.  Under the guise of troll killing, these errant knights may instead kill the lifeblood of the nation.

In short, contact your Congressional representatives and urge them to exercise caution. The current quest or zeal for patent reform should not run amok, as the Fourth Crusade, where Constantinople was shamefully ransacked.  The intended/unintended consequences of many of these new reform measures will undercut our nation.

The ongoing mantra that patents hinder innovation is utter nonsense.  Patents protect innovation, secure funding for fledgling companies, and otherwise promote new ways of life.  By condemning patents as anti-innovation, the big tech companies, through their lobbyists and the press, are themselves trying to hinder innovation by eliminating competition, and maintain their own market share without disruptive upstarts.

LES and many other organizations condemn these actions to cynically malign the patent system for private gain. But we should all lend our voice against this rather malevolent attempt to kill what our Founders gave us.  Patents and copyrights are the only rights set forth in the Constitution.  All other rights are separately attached in a Bill of Rights, such as the right of free speech, etc. Our great nation owes much of that greatness to a robust patent system, where innovation and innovators large and particularly small are protected.  Tilting the system toward large corporations with large war chests undermines the fabric of what the Founders wanted and what our nation needs.  These recent legislative efforts go too far, and our representatives need to know this.

Raymond Van Dyke, IP/patent practitioner and educator, 202.378.3903

Ray Van Dyke Teaches Course on Intellectual Property at SMU

Next week at Southern Methodist University in Dallas, Texas, I reprise my course on intellectual property. Excerpts from the course description are set forth below and available online at

Dr. David Matula and I have taught the class since 2000, and I am honored to teach the class again on January 16 and 17, 2015. The Course is open to everyone and I hope to see those that can attend next week. Engineers, scientists, corporate and business people, faculty and students have praised the class, and 2015 will be no exception! My presentation includes all the basics on IP, current developments, and purposes of IP to our society (and the past).

I hope to see you there!



What is intellectual property? Why should I patent my innovation? How do I draft my claims?  This course will address the importance of technology and intellectual property in America, the fundamentals of patent, copyright, trademark and trade secrets for the lay person, and the real world application of those rights.

Fair use, open source, and alternatives will be described and interpreted.

Current developments and changes are also covered. In particular, the America Invents Act of 2011, the most monumental change to patent law since 1836, will also be discussed, and the significant effects on universities, small inventors and companies highlighted. Supreme Court, Legislation and other developments that affect these rights will also be covered in this popular and engaging presentation.


  • History and Philosophy of Intellectual Property Rights and their role in the information age
  • Intellectual property’s impact on information system design and development
  • The inventor’s role in recognizing a patentable idea
  • Analysis of ground breaking industry patents
  • Impact of Emerging Technologies on Intellectual Property


Computer Science & Engineering Department

Bobby B. Lyle School of Engineering

 15th Annual Short Course on Intellectual Property and Information Technology

January 16 & 17, 2015:  Friday 9:am-5:pm, Saturday 9:am-1:pm

Palmer Conference Center for Engineering Leadership

Caruth Hall, Rm. 406

3145 Dyer Street, Dallas, TX  75205

Short course fee:  $200 (group rates available)

SMU Students:  Credit – one hour:  Register for CSE 5111/7111

Non-credit complimentary SMU student registration available (contact

Software Patents Shrugged

In the latest film installment of Ayn Rand’s influential novel, Atlas Shrugged, the government has taken the drastic step of seizing all patents, as well as copyrights, for the public good, under the so-called Fair Share Act. Although the U.S. government has not officially taken such a drastic step, some economists and advisors have recently advocated the abrogation of patent rights for industries involved with software. Indeed, some argue that software patents are deleterious to the public good.

A patent is a bargain or contract with the government designed to foster innovation. The United States’ founders determined that technological advancements should be rewarded, and chose to adopt a patent system as the framework for such social enhancement. The idea is that an inventor would have some incentive not only to conceive of an invention, but also to reduce it to practice — i.e., allow the concept to enter the market instead of keeping the technology secret.

Tricky Business

From the earliest Venetian patents of the late 15th Century to today, the patent system has given inventors a mechanism to protect their ideas. Without protections, rampant copying would ensure and inventors would have less ability and incentive to contribute.

Modern technologies are complex, far beyond the technologies of 1790, when the first patent laws were enacted in the U.S. What would the founders think of smartphones and the software engines therein?

Software is not a physical, tangible thing, although it certainly controls physical things. From the earliest beginnings of software in America, inventors have tried to capture the code in a patent. In most cases, this is no trivial task. Crafting a patent claim, the heart of the exclusive right, can be tricky, especially in view of the various Supreme Court cases that have shaped the issue. Continue reading