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I definitely can imagine that after the Alice decision many patent lawyers would still intentionally try to push through applications contrary to the court deci

I definitely can imagine that after the Alice decision many patent lawyers would still intentionally try to push through applications contrary to the court decision - if there's a reasonable chance that it might get through, and you can afford it, why not try it? Any actual change in patent application behavior would come only when the Patent Office would assert that yes, they mean it, and they will deny these applications, and they did it only in 2019 (and issued the guidence along with it). So yes, your suggestion that "it means Alice was somehow misapplied for 5 years and no one ever meaningfully contested it" seems quite plausible for me, it's not easy to meaningfully contest it (you need an actual situation where such a misapplied patent gets abused and gets contested) and it takes years to do so.

pnw_hazor 7y ago
One of the problems with Alice is that it provides very little useful guidance to anyone. The EFF argues that Alice invalidates all software patents. Others argue that it doesn't. In fact, the only sure thing the SCOTUS said in Alice was that they are not invalidating all software patents just the bad ones, while providing no workable standard for distinguishing the bad from the good. While the majority of Justices agreed that the Alice patent was invalid, a majority did not sign on to one opinion. There were multiple concurring opinions that agreed on the result but not the reasoning. The decision provides at best an "I'll know it when I see it" standard. To say, lawyers are deliberately or intentionally acting contrary to the decision is not accurate. Lawyers will work to draft patents that comply with Alice, and they will argue that the applications they draft comply with Alice. Unfortunately, very little in the Alice decision can be used to reason for or against any particular patent because it is so incoherent.

pnw_hazor 7y ago

One of the problems with Alice is that it provides very little useful guidance to anyone. The EFF argues that Alice invalidates all software patents. Others argue that it doesn't. In fact, the only sure thing the SCOTUS said in Alice was that they are not invalidating all software patents just the bad ones, while providing no workable standard for distinguishing the bad from the good. While the majority of Justices agreed that the Alice patent was invalid, a majority did not sign on to one opinion. There were multiple concurring opinions that agreed on the result but not the reasoning. The decision provides at best an "I'll know it when I see it" standard. To say, lawyers are deliberately or intentionally acting contrary to the decision is not accurate. Lawyers will work to draft patents that comply with Alice, and they will argue that the applications they draft comply with Alice. Unfortunately, very little in the Alice decision can be used to reason for or against any particular patent because it is so incoherent.