Under U.S. patent law, patent-eligible subject matter includes “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof”. The U.S. Supreme Court has long held that abstract ideas and natural laws, by themselves, are not patent-eligible.
A test for patent eligibility
In its Alice Corp v. CLS Bank Int’l decision, the Supreme Court set out a test for determining whether the application of such abstract concepts is patent-eligible. If a patent claim or patent application involves an abstract idea, the second step under Alice is evaluating whether there is “an inventive concept” that makes such an idea eligible for patent protection. Well-known and conventional activities that have been routinely used in that field are not sufficient to show this requirement. The Alice decision made clear that merely using a computer to perform an ordinary business task that in the past was performed manually is not enough to obtain a patent.
Finjan behavior-based virus screening determined patent-eligible
Since the Supreme Court issued its Alice decision, many federal courts have invalidated software patents. However, in 2018 the Federal Circuit Court of Appeals upheld the patent-eligibility of virus-scanning software. In Finjan, Inc. v. Blue Coat Systems, the Circuit Court determined that, although virus-screening alone is considered an abstract idea, Finjan’s virus-screening software enables the detection of unknown threats, and is therefore patent-eligible. Here is why: