On February 23, 2018, in In re Silver, the Supreme Court of Texas conditionally granted mandamus relief and vacated the trial court’s order compelling production of emails between an inventor and his non-lawyer registered patent agent. In re Silver, Case No. 16-0682, 2018 WL 1022470 (Tex. February 23, 2018). The court held that a client’s communications with a patent agent, made to facilitate the agent’s provision of authorized legal services to the client, are privileged under Texas Rule of Evidence 503 (attorney-client privilege). The ruling marked the first time a state high court weighed in on the issue.

On January 10, 2018, the Federal Circuit added Finjan, Inc. v. Blue Coat Sys., Inc., No. 2016-2520 (Fed. Cir.), to its Enfish jurisprudence and upheld the subject matter eligibility of a software patent directed to virus-scanning downloadable app code for known and suspected malware. As construed, the invention claims novel behavioral-based analysis of source code to identify; detection of potentially dangerous files results in creation of a new file attached to the app code which is then evaluated by the destination computer to determine whether to allow the app to be downloaded.