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Fenwick & West was founded in 1972 in the heart of Silicon Valley—before “Silicon Valley” existed—by four visionary lawyers who left a top-tier New York law firm to pursue their shared belief that technology would revolutionize the business world and to pioneer the legal work for those technological innovations. In order to be most effective, they decided they needed to move to a location close to primary research and technology development. These four attorneys opened their first office in downtown Palo Alto, and Fenwick became one of the first technology law firms in the world.  MORE >

From our founding in 1972, Fenwick has been committed to promoting diversity and inclusion both within our firm and throughout the legal profession. For almost four decades, the firm has actively promoted an open and inclusive work environment and committed significant resources towards improving our diversity efforts at every level.  MORE >

FLEX by Fenwick is the only service created by an AmLaw 100 firm that provides flexible and cost-effective solutions for interim in-house legal needs to high-growth companies.  MORE >

Fenwick & West handles significant cross-border legal and business issues for a wide range of technology and life sciences who operate internationally..  MORE >

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Year after year, Fenwick & West is honored for excellence in the legal profession. Many of our attorneys are recognized as leaders in their respective fields, and our Corporate, Tax, Litigation and Intellectual Property Practice Groups consistently receive top national and international rankings, including:

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  • Nearly 20 percent of Fenwick partners are ranked by Chambers
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Software Patents: Supreme Court Ruling Leaves Too Many Questions

A unanimous US Supreme Court confirmed today that the claims of Alice Corp. to its computer-implemented method and system for mitigating “settlement risk” in financial transactions are not patent-eligible subject matter.

Once again, the court resorted to the “abstract idea” analysis it promulgated in the recent Bilski and Mayo cases. Once again, the court gave virtually no guidance as to how one could tell what qualifies as an “abstract idea.” The opinion simply used qualitative terms such as “concept,” “fundamental,” and “building block” to reach the conclusion that the claims here were drawn to an abstract idea.

The court went so far as to say that it “need not labor to delimit the precise contours of the ‘abstract ideas’ category in this case.” However, we are all left wondering how anyone is supposed to undertake this analysis with such little guidance being provided. The court has told us to ignore computer implementation unless it does more than “apply the abstract idea… using some unspecified, generic computer.” Accordingly, the potential impact of this case on other software patents is large, but significant further litigation will be needed before we see the contours of what is considered “abstract” by courts.

In the coming months and years, courts and the US Patent and Trademark Office will be called upon almost daily to determine whether this or that invention draws on an “abstract idea.” In undertaking their analysis, neither the courts nor the PTO will have anything concrete on which to base their analysis. It is a fairly simple exercise to describe almost any invention based on its specific, real-world application or based on the underlying concepts and principles that make the invention possible. Inevitably, this means that both courts and the PTO will have little difficulty in deciding the ultimate question first and then writing an explanation supporting that decision.

Given the huge uncertainty in industry that can come from such a “result-oriented” approach that has little objective, testable analytic rigor, today’s Supreme Court decision is likely to trigger a call to Congress to provide clarity to the patent statute. The “abstract idea” exception to patent eligibility is a judicially created exception to language in the patent statute, and it is well within the power of Congress to address this issue.

However, until Congress acts, we will need to await a gradual growth of case law to determine just which types of inventions are considered to correspond to “abstract ideas,” and it is anyone’s guess how that case law will develop.


Originally published in EE Times on June 19, 2014.