It has now been just over a year since the Supreme Court issued its opinion in Alice v. CLS Bank. Since then, over 100 cases have looked at whether granted patents meet the standards set in Alice. The result has been overwhelmingly on the side of finding patents invalid. Alice has become a crucial tool for those fighting against overbroad patents on abstract ideas.

EFF, along with Public Knowledge, filed an amicus brief on Friday asking the Federal Circuit to apply Alice in the latest in a slew of cases on appeal after a district court invalidated a patent.

The case is McRO v. Bandai, or more appropriately, McRO v. anyone who animates faces, since McRO seems to have sued pretty much the entire animation industry. The patent owner lost in the district court, when Judge Wu, in a very thorough and thoughtful opinion, held that the patent was on nothing more than the abstract idea of “automated rules-based use of morph targets and delta sets for lip-synchronized three-dimensional animation.”

At first blush, that may seem like it’s not an abstract idea. But as we explain in our brief, the Supreme Court has long rejected patenting this type of innovation. Why? Because at most, what McRO is trying to patent is the idea of using mathematical rules about how our mouths move. Not only that, even if particular rules were in the claims (they’re not), that too would not be patentable. The Supreme Court long ago made clear that Pythagoras could not have patented the Pythagorean theorem just by saying that it could be used in surveying. Similarly, mathematically describing how our mouths may be a scientific breakthrough. But just like the Pythagorean theorem, it is not patentable.

The patent owner is supported on appeal by the BSA, a trade group made up of some of the biggest software companies in the country. Companies, for example like IBM, that sometimes engage in their own troll-like behavior. The BSA argued that McRO’s patent should not be invalidated, as doing otherwise takes the Alice decision too far.

But despite what the BSA claims, this case is not an over-application of Alice, and more importantly is not the death knell for the software industry. McRO’s patent is invalid under Alice and the case law that came before it. In addition, as we discuss in our brief, the software industry is simply not an industry that significantly relies on the patent incentive to innovate. So even if this case meant the end of all software patents (though it doesn’t), the software industry would continue to be just as innovative as before.

Certain patent owners are doing their best to limit the Supreme Court’s Alice decision. We hope the Federal Circuit rejects the BSA’s fear mongering and faithfully applies Alice to invalidate a patent that should never have been granted.