Alice Corp. v. CLS Bank

The cries and lamentations you hear are coming from patent attorneys and the Federal Circuit as they try to figure out what to with the Supreme Court’s latest pronouncement on the definition of an “abstract idea” in patent law.  Today the Court ruled unanimously that the patent claim at issue was too abstract to be patented, but the opinion offers little help on figuring out when that is the case.  Take a look at page 10:

In any event, we need not labor to delimit the precise contours of the “abstract ideas” category in this case.  It is enough to recognize that there is no meaningful distinction between the concept of risk hedging in Bilski and the concept of intermediated settlement at issue here.  Both are squarely within the realm of “abstract ideas” as we have used that term.

While it is true that the Court did not need to do more to decide this case, they did need to  “labor” to clarify the law, which is the actual problem.  “Totality-of-the-circumstances” is not a great test for this area, and sadly there are now only three votes to say that business method patents are ineligible (down from four in Bilski).  Expect a lot more litigation on software patents, more divided opinions from the Federal Circuit, and another grant of certiorari in four or five years.

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2 Responses

  1. dave hoffman says:

    I’m thinking that uncertainty and ambiguity will cheer, not horrify, patent attorneys. Good for business!

  2. Gerard Magliocca says:

    Touche!