The US position on software patents has gone through a significant change in the last five or so years, from being broadly accepting to becoming a difficult jurisdiction.
What precipitated this? If the concurring opinion of Circuit Judge Mayer in ULTRAMERICIAL, INC. v HUKU, LLC 2010-1544 (Fe. Cir. 2014) is to given credit, then the blame rests squarely with vexatious litigants, particularly "patent trolls".
Many believe however, that the legal framework (the Alice 2-step abstract idea test) that has been developed is a blunt tool that throws the baby out with the bathwater. It is a shame, and it would be desirable if more targeted approach could be found.
Here is the relevant extract:
Resolving subject matter eligibility at the
outset provides a bulwark against vexatious infringement
suits. The scourge of meritless infringement claims has
continued unabated for decades due, in no small measure,
to the ease of asserting such claims and the enormous
sums required to defend against them. Those who own
vague and overbroad business method patents will often
file “nearly identical patent infringement complaints
against a plethora of diverse defendants,” and then
“demand . . . a quick settlement at a price far lower than
the cost to defend the litigation.” Eon-Net LP v. Flagstar
Bancorp, 653 F.3d 1314, 1326 (Fed. Cir. 2011). In many
such cases, the patentee will “place[] little at risk when
filing suit,” whereas the accused infringer will be forced to
spend huge sums to comply with broad discovery
requests. Id. at 1327 (noting that accused infringers are
often required “to produce millions of pages of documents,
collected from central repositories and numerous
document custodians”). Given the staggering costs
associated with discovery, “Markman” hearings, and trial, it is hardly surprising that accused infringers feel
compelled to settle early in the process. See id. (noting
that the accused infringer had “expended over $600,000 in
attorney fees and costs to litigate [the] case through claim
construction”); see also Cardinal Chem. Co. v. Morton
Int’l, Inc., 508 U.S. 83, 101 n.24 (1993), (explaining that
“prospective defendants will often decide that paying
royalties under a license or other settlement is preferable
to the costly burden of challenging [a] patent” (citations
and internal quotation marks omitted)). Addressing
section 101 at the threshold will thwart attempts—some
of which bear the “‘indicia of extortion,’” Eon-Net, 653
F.3d at 1326—to extract “nuisance value” settlements
from accused infringers. Id. at 1327; see also id. at 1328
(explaining that the asserted patents “protected only
settlement receipts, not . . . products”).