Fed. Circ. Muddies Waters On Method-Of-Treatment Patents

Law360 (September 4, 2019, 3:28 PM EDT) -- In 2012, the U.S. Supreme Court introduced the two-step test from Mayo Collaborative Services v. Prometheus Laboratories Inc. for determining whether patent claims are invalid as claiming patent-ineligible subject matter under 35 U.S.C Section 101.[1] Step one of the now-familiar test asks whether the claims are “directed to” a patent ineligible concept, i.e., a natural law, natural phenomenon or abstract idea.

If not, the claims are patentable subject matter, and the inquiry ends. If they are directed to a patent ineligible concept, step two asks whether the claims contain an “inventive concept” so as to “transform that [patent ineligible concept] into...

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