Reverse Engineering and Trade Secrets in the Post-Alice World
LaRoque, Samuel J. · Kansas Law Review · 2017
Consider a new software startup company, its employees working long hours to develop a software algorithm that will be bigger, better, and faster than the state-of-the-art already on the market.Maybe it will allow traders to respond to changing financial markets a millisecond faster than their competitors, or it will help airlines plan more efficient routes to save billions of dollars in fuel each year.The company believes this new algorithm will lead to an initial public offering worth tens of millions of dollars and early retirement.But before it releases the software and changes the world, it wants patent protection.It wants to prevent others from taking the same algorithm, packaging it with a slightly different product, and selling it for less because it had lower development costs.The company consults with several patent lawyers and receives discouraging news.In view of several recent Supreme Court decisions, most notably Alice Corp. v. CLS Bank International 1 in 2014, this algorithm will be nearly impossible to patent.This company cannot use patent protection to exclude others from using the algorithm, and the company's success is suddenly highly uncertain.What should the company do?These are difficult times for software companies seeking to protect their intellectual property.The United States Supreme Court decided Alice in June 2014, holding that most computer software constitutes unpatentable abstract ideas. 2 Alice has therefore made software patents