Down the Rabbit Hole: Who Will Stand Up for Software Patents after Alice?

In June 2014, the Supreme Court changed patent law completely when it issued a decision in Alice Corporation v. CLS Bank International. In one fell swoop, the Court cast doubt on the validity and enforceability of hundreds of thousands of issued software and technology patents. Since the Alice decision, federal district courts have applied the Alice test and have already invalidated more than one hundred software patents as a matter of law. This Comment discusses why the Alice decision expands the judicial doctrine of creating exceptions to the Patent Act, and shifts the statutory factual inquiry of obviousness into a legal inquiry that enables courts to invalidate patents as a matter of law in pretrial motions. Given the role of software in our economy, Alice places billions of dollars of technology products and services in peril and threatens future investment in American technology companies. In light of Alice, this Comment asks when technology companies will begin lobbying Congress to reaffirm the Patent Act and to legislate to overcome the wrong-headed thinking of Alice