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By J.D. Houvener
Patent Attorney and Founder

Hi everyone, I’m J.D. Houvener, your host of the Bold Today Show, where Hugh, the inventor, entrepreneur, business owner, gets your daily dose of inspiration to make the world a better place. Alright, we’re in this week talking about software and software patents, how that fits into your business, and I even start to think about how it really pervades all of our everyday activity.

So today I want to talk about a specific case. I see two cases that really lay out the beginning of what really became sort of an onslaught of deaths for software patents. It began in 2012, for the case we’re going to show up here called Mayo. In this case, you know, there’s a much longer case description, as you’ll see. I call it Mayo because it started this test to see whether a process or a machine, as we’ve talked about it last, you know, as we talked about yesterday in the software patent, whether that fits into the category of an abstract idea. Okay, an abstract idea or a law of nature has always been ineligible. A law of nature like gravity or E=mc^2, our old buddy Einstein, these are ideas that are just not eligible because they belong to nature. They belong to everyone; they’re part of the public domain and knowledge. Just because you found out the equation, yeah, you’re a smart guy, don’t get me wrong, but you don’t own that. You’re not gonna be able to make a claim on them. So in order to get an eligible application, an eligible patent, if you have to show that you’re outside of them, you’re doing something more than an abstract and a natural phenomenon.

So what Mayo did is it provided a two-part test where you first analyze whether it’s an abstract idea. Then you say, okay, well, even if it may be abstract, have they added something that’s transformative? Have they made it substantially greater, right, substantially more than or improved something to the level that you can actually touch it and feel it or put your arms around it, as it were? That’s the test, and it was backed up and supported by a really landmark case called CLS Bank versus Alice. So that case really said, yeah, actually set the precedent, or it said, look at this case we called Mayo. We decided two years ago, the case of Alice was decided in 2014, said we were right. Said we’re gonna use this Mayo test, and when I put this two-part test in place, where we say, okay, first up, is this, you know, is this directed to an abstract idea? And secondly, if it is, before we kick it out and say it’s ineligible, what I say is this in some way transforming the nature of it so that it’s a patent-eligible invention? Even if the premise is directed to an abstract idea, is what’s being claimed doing something else with it? Is it taking it to the next level? Is it bringing it into three dimensions? Is it changing temperature? Is it moving an electron around? Is it doing something with pressure or other bodies, our device, something moving that we can touch, see, and feel? And as long as that’s not non-obvious and has utility, it is patentable.

Alright, well, those two landmark cases, Mayo and Alice, really set the framework for the next couple of days. We’re gonna be talking about these bigger cases that have come up recently, but the bottom line is that this is a huge ruling and that many, many patents have been issued leading up until this case, and after that, there was about, you know, thousands of patents that were invalidated, those that have already been told, hey, here’s your patent, congratulations. After that case got ruled in Alice in 2014, over the next several years, even up till now, many of these patents have been ruled to be invalid under the recent law. So if you have any questions about this, you know, I know it’s a big subject, I laid a lot out there for you in about five minutes, please give us a call, go on our website and book a consultation. We’d be happy to talk with you. I’m your host J.D. Houvener of the Bold Today Show. It’s been a pleasure. Go big, go bold.

About the Author
J.D. Houvener is a Registered USPTO Patent Attorney who has a strong interest in helping entrepreneurs and businesses thrive. J.D. leverages his technical background in engineering and experience in the aerospace industry to provide businesses with a unique perspective on their patent needs. He works with clients who are serious about investing in their intellectual assets and provides counsel on how to capitalize their patents in the market. If you have any questions regarding this article or patents in general, consider contacting J.D. at