Law360, New York (July 25, 2012, 3:15 PM EDT) -- The U.S. Supreme Court repeatedly has explained that abstract ideas are not patentable, in part, because to patent an abstract idea would “preempt use of th[e] approach in all fields.” Recent cases have thus called into question whether a claim’s “preemptive force” is a standalone test for patentability under §101 of the U.S. Patent Code. In CLS Bank v. Alice, the Federal Circuit clarified that a claim’s “preemptive force” does not, standing alone, indicate that the claim is abstract. Instead, preemption merely reinforces a conclusion that the claim is nonpatentable.
Since the Supreme Court struck down the bright-line machine-or-transformation test...
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