It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.

Patentability of Software after Bilski: How the Federal Circuit Will and Should Develop Doctrine to Encourage Free Software

-- By ThomasHou - 19 Oct 2011

Section I: Although Bilski represents an opportunity to shape eligible subject matter jurisprudence, the Federal Circuit will be unlikely to limit it for computer software.

Subsection A: It is well-entrenched in Federal Circuit jurisprudence that computer software is eligible subject matter, which Bilski did not disturb.

Subsection B: Bilski offers several opportunities for the Federal Circuit to limit computer software patents.

Subsub 1: The machine-or-transformation test for process patents can be stringently interpreted to require tying the software to a specific type of machine or transformation, rather than to computers in general.

Subsub 2: The Supreme Court's early jurisprudence concerning mathematical formula and abstract ideas can be expanded to invalidate many potential computer software patents.

Section II: Bilski does not foreclose the use of other substantive requirements for patentability, which should be raised high for computer software patents.

Subsection A: The nonobviousness requirement should be construed strictly, and include broad consideration of pertinent prior art and secondary factors of the software field.

Subsection B: Institutional changes for the Federal Circuit and PTO are required for others to challenge the novelty of computer software patents, especially using third-party introduced prior art.

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