Jeff Kohler never set out to become a symbol of what he sees as a broken patent system. In 2005, he was a working software engineer who spent his nights and weekends on a side project born from pure curiosity: a web conferencing system that could record live sessions and let people replay them later. It was an ambitious idea for the era, far ahead of what most mainstream tools could do. Convinced that his creation had real value, he filed for a patent without hiring a patent attorney, relying instead on his own careful work and two CDs stuffed with C++ source code to demonstrate exactly how the system operated. The U.S. Patent and Trademark Office granted him the patent in 2010. Years later, after Kohler joined Microsoft, the tech giant chose to license his technology for Teams, its video-conferencing platform. That validation felt like the culmination of his long solitary effort. But when YouTube introduced a feature letting viewers pause, rewind, and change the playback speed of live video, Kohler saw his invention mirrored in a way that felt unmistakable. Living in Bellevue, Washington, watching a global tech company adopt what he considered his own patented idea, he made a decision that would consume years of his life: he sued Google for patent infringement in U.S. District Court in Seattle in April 2023.
Google did not respond with a defense of the feature’s innovative merits. Instead, the company argued that Kohler’s patent was too abstract to qualify for patent protection under U.S. law. The district court agreed and dismissed the case, and the U.S. Court of Appeals for the Federal Circuit later affirmed that decision. Both courts leaned heavily on Alice Corp. v. CLS Bank International, the landmark 2014 U.S. Supreme Court ruling that reshaped software patent law. Under Alice, an inventor cannot claim a patent on an abstract idea implemented with generic technology or conventional hardware. For Kohler, this meant his entire case was decided before the merits were ever explored. The courts looked at his patent and concluded that using a general-purpose computer to execute his software concept did not add the “inventive concept” required by law. The decision was dispositive, and he never got the chance to prove that Google had looked at his work and copied it. Kohler’s experience is hardly unique: Alice has been used to invalidate thousands of software patents, and the Supreme Court has repeatedly declined to revisit or clarify the standard. For him, the legal landscape has become profoundly unwelcoming. “The patent legal system has become hostile to inventors,” Kohler said. “Because of Alice, my case got stopped before it even started.”
The story of Alice begins with a crisis that felt very different from Kohler’s. In the years leading up to 2014, patent trolls—entities that bought broad, vague patents with no intention of building products—were flooding the courts with aggressive infringement lawsuits against technology companies. These lawsuits were often baseless, but defending them was so expensive that many companies simply settled, creating a perverse tax on innovation. The Supreme Court’s Alice decision was meant to slam the door on that abuse. By requiring that a patent not only articulate an idea but also contain a sufficiently inventive application of that idea, the ruling gave judges a powerful way to dismiss weak claims early. The Electronic Frontier Foundation, a digital rights group not known for siding with big business, called the Alice standard “a crucial tool” for fighting patent trolls. There is little doubt that the ruling achieved its immediate goal: thousands of low-quality software patents were invalidated, and abusive litigation declined. But somewhere along the way, critics argue, the machinery designed to filter out bad actors began sweeping up legitimate inventors too. The problem is especially acute for software patents, because software by nature runs on pre-existing hardware. When an inventor uses standard computers, servers, or networking equipment to make an idea real—as Kohler did—courts often conclude that the patent lacks the necessary inventive step, even if the entire problem-solving process was novel and non-obvious.
Experts who have studied Kohler’s case see a clear pattern of collateral damage. Jon McMichael, an intellectual property lawyer who has written about the dispute, notes that inventors who rely on general-purpose computers and off-the-shelf hardware face an especially high hurdle. “That’s where those patent holders run into more problems,” he said. Toshiko Takenaka, a professor of intellectual property law at the University of Washington who is preparing an academic paper on the case, believes the courts have lost sight of the balance Alice was meant to strike. The decision’s ability to quickly defeat bad actors, she said, comes “at the expense of the best inventors.” She points out that Kohler’s system enabled ordinary computers to do something genuinely new—recording and replaying live web conferences in a way that did not exist before. “Software patents are too frequently being invalidated without giving the owner the opportunity to defend it,” Takenaka said. “This inventor provided something ordinary computers could not do, right? So therefore, in my view, this is an eligible invention.” Her concern is shared by some members of the judiciary, including Federal Circuit Chief Judge Kimberly Moore, who authored the opinion affirming the dismissal of Kohler’s case. In a separate 2020 concurrence, Moore made a startlingly frank appeal, writing that she and her fellow judges were “unanimous in our unprecedented plea for guidance” from the Supreme Court on how to interpret Alice—a precedent she described as a “patent-killing judicial exception of our own creation.”
For Kohler, the legal fight is deeply intertwined with a long and accomplished career in technology. After filing his patent, he spent over fifteen years at Microsoft, where he helped launch HoloLens and eventually became senior director of product management for the Surface line. Later, he served as a product leader at Meta, working on the Horizon platform. These are not the credentials of someone trying to game the system; they are the résumé of a builder who has spent his professional life creating real products. Yet he now finds himself in the position of a lone plaintiff challenging the most powerful technology companies in the world, armed only with his original patent and his conviction that the law has wandered far from its purpose. He describes the experience as intensely isolating. “It’s me and my lawyer against the world,” Kohler said. “I never thought I would be doing something like this.” His lawyer, Kathryn Jean Miller, comes to the case without a background in patent law; she was admitted to the Supreme Court bar specifically to represent him. Their petition does not ask the justices to overturn Alice outright—an approach that would likely be futile given the court’s repeated refusals to revisit the doctrine. Instead, they ask the Supreme Court to clarify how lower courts should apply the Alice test, to make it clear that a patent for a genuinely new and inventive software process is not too abstract simply because it runs on conventional hardware.
The Supreme Court will decide on September 28 whether to take up Kohler’s case, with a formal announcement expected the following week. The odds are daunting: the Court has already declined more than eighty-nine petitions related to Alice, including some backed by the U.S. Solicitor General. But Kohler remains hopeful, in part because his petition takes a fresh angle by focusing on how the Alice test should be applied rather than on the legitimacy of the decision itself. In the weeks leading up to the Court’s conference, he is hoping that fellow inventors will file amicus briefs by September 23, telling their own stories of patents invalidated before they could be defended. He believes that a broad and diverse coalition is ready to speak out. “There’s a broad coalition of people who would like some sanity brought back to patent law, from small inventors and startups to former judges,” Kohler said. “That’s what I’m trying to do with my petition.” Whether the Supreme Court listens or not, his case has already drawn attention to a profound tension in American innovation policy: the need to weed out fraudulent claims versus the need to protect the independent inventors who often bring the world its most surprising ideas. For Kohler, this fight is no longer just about his own patent. It is about restoring a system where an inventor who creates something real—something ordinary computers could not do before—gets his day in court. “The patent legal system has become hostile to inventors,” he said, and he is determined to prove that it does not have to remain that way.
