Facebook, Google, Zynga Ask Courts To Reject Patents On Abstract Ideas
I'm sympathetic to the situation, but legally this is the wrong approach. The Supreme Court has clearly said that software patents don't fall under the exclusion for abstract ideas, and has also said that it's unwilling to entertain categorical exclusions on the subject matter of patentability.You're not going to convince the lower courts to ignore Supreme Court guidance on this issue, and this is a particular argument that has already lost in a relatively recent case so the Supreme Court is unlikely to revisit it any time soon.Companies like Facebook, Google, etc, are in a far better position asking for a reevaluation of the bar for novelty and non-obviousness. There is a multi-factor test for non-obviousness, and John Deere holds that secondary factors such as "commercial success, long felt but unsolved needs, failure of others..." can speak to an invention being non-obvious.I think an argument that evidence of independent invention should create a presumption that an invention is obvious would be far better received as well as being more consistent with the statutory framework.