The Post-Alice Blend Of Eligibility And Patentability

By Lewis Hudnell (July 26, 2017, 12:13 PM EDT) -- Although the U.S. Supreme Court's decision in Alice Corp. v. CLS Bank Int'l set forth a two-part test for determining patent eligibility, both the Supreme Court and the Federal Circuit have drawn on other sections of the patent statute to determine eligibility. As a result, in many instances, patent-eligibility determinations have resembled patentability determinations. By blending different inquiries under the patent statute, Alice and its progeny have made determining what constitutes patent-eligible subject matter unclear and arguably made the patent system weaker.

Section 101 expressly states that the categories of patent eligible subject matter are "subject to the conditions and requirements...

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