Washington, D.C., partner Bob Stoll penned an article, “Alice Angst Intensifies,” for Law360, discussing two recent cases from the U.S. Court of Appeals for the Federal Circuit, Berkheimer v. HP Inc. and Aatrix Software Inc. v. Green Shades Software Inc., and the effects those cases have on the test set out in the U.S. Supreme Court’s decision in Alice v. CLS Bank, dealing with subject matter eligibility under Section 101. Alice describes a two-step test for evaluating subject matter eligibility. Bob writes, “That case held that one must make a determination as to whether the claims are directed to a patent-ineligible concept (a law of nature, a natural phenomenon, or an abstract idea.) If it is determined that the claims are drawn to an ineligible concept, then they must be evaluated as to whether there is something ‘significantly more’ that would render the claim eligible.” As shown in the two recent cases, U.S. Court of Appeals for the Federal Circuit cases, Berkheimer v. HP Inc. and Aatrix Software Inc. v. Green Shades Software Inc, there may be factual underpinnings to that analysis that would, in some instances, need to be evaluated by the trier of fact.
Read “Alice Angst Intensifies.”