Rebutting 101 Rejections Asserting 'Idea Of Itself': Part 1

Law360, New York (October 2, 2015, 11:09 AM EDT) -- The examination of patent claims for subject matter eligibility under 35 U.S.C. § 101 is in a state of flux. Following the U.S. Supreme Court’s decision in Alice Corp. v. CLS Bank, Int’l., twice now has the U.S. Patent and Trademark Office published guidance for patent examiners to follow when determining whether claims recite patent-eligible subject matter.

Each new guideline affords new bases for practitioners and applicants to rebut rejections under § 101. The most recent guidance, published in July, includes further information regarding how examiners should identify abstract ideas. One noteworthy new guideline suggests that examiners should not identify a...

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