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Is This Really Patentable?
With the Supreme Court's decision in Alice v. CLS Bank, 134 S. Ct. 2347 (2014) (Alice), parties defending against a claim of patent infringement gained a potential way to find an early resolution to patent litigation.
For decades before 2010, defendants rarely challenged a patent by questioning whether it was directed to unpatentable subject matter under Section 101 of the Patent Act. Typically, a defendant would challenge an asserted patent on the basis that it lacked novelty (Section 102), was obvious (Section 103), and/or failed to clearly describe or enable the claimed invention (Section 112). Further, a number of older opinions endorsed the patentability of software and business methods. See, e.g., Diamond v. Diehr, 450 U. S. 175 (1981); State Street Bank & Trust v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998).
The viability of such a defense shifted with the decisions in: Bilski v. Kappos, 561 U.S. 593 (2010); Mayo Collaborative Services v. Promtheus Labs., 566 U.S. 66 (2012); and finally Alice v. CLS Bank, 134 S. Ct. 2347 (2014). These decisions, taken together, reinvigorated the principle that “laws of nature, natural phenomena, and abstract ideas” are not eligible for patenting. Mayo in particular established a two-step framework for analysis: 1) are the patent's claims directed to one of the three patent-ineligible topics?; and 2) do the claims contain “additional features” that ensure that the claim “is more than a drafting effort to monopolize” the natural law, phenomenon, or abstract idea?
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