In the recent Alice Corp. v. CLS opinion, the Supreme Court described a two-part “framework,” for making such a distinction between patents that claim the building blocks of human ingenuity and those that integrate the blocks into something more:
Determine whether the claim(s) at issue are directed to a patent-ineligible concept, (is it an abstract idea?) and if so
Examine the elements of the claim(s) at issue, individually and as an ordered combination, to determine whether the claim contains additional features or an inventive concept sufficient to transform the nature of the claim into a patent-eligible application.
The problem with respect to prong no. 1 of the framework is the opinion does not define the “abstract idea” element. The only guidance provided in the opinion is that where a patent claim is deemed to cover a long prevalent, fundamental economic practice it is considered as being directed to an abstract idea. How one should determine long prevalence or fundamental practice is left to interpretation. Whether an innovation that automates a long standing fundamental practice will qualify as an abstract idea is left unanswered by the Supreme Court. Accordingly, practitioners should keep an eye on further decisions involving the two-part framework to gain further insight on just what is an “abstract idea”.
By Greg Marcum