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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).
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