August 2017
Recent Federal Circuit Decisions Provide Mixed Messages on Patent Eligible Subject Matter

The Supreme Court’s Alice decision is now more than three years old, however, stakeholders, the courts and the U.S. Patent and Trademark Office are still struggling to understand Alice and, in particular, how to determine whether software and computer-related inventions claim patentable subject matter.

For example, in July 2017, former Federal Circuit Chief Judge Paul Michel testified before the House of Representatives IP subcommittee that, while Alice has allowed more cases to be resolved early in litigation under the two-part Alice “abstract ideas” test, he also warned, “[t]he problem part of it is the standards are so vague and uncertain that there is massive unpredictability.” Unfortunately, it remains challenging to understand what makes a software or computer-related invention patentable subject matter or an abstract idea.

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