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June 09, 2016

Comments

Hey Don,

With respect to claim 1 being deemed patent-ineligible, I find the whole doctrine of "mental steps" to be bizarre. Nothing in 35 USC 101 suggests that a patent-eligible process excludes one involving "mental steps." But then again, there are also no express exceptions in 35 USC 101 with respect to "laws of nature," "natural phenomena" or "abstract ideas." Again, SCOTUS with the nonsensical Mayo/Alice framework has created an utterly subjective mess when it comes to patent-eligibility, and one that could have been addressed objectively (and with an evidentiary record) by applying, instead, 35 USC 112, 102 or 103.

If the invention resides not in the specific method steps (technology), what is the point in being restricted to reciting rarely used method steps if third parties can just substitute commonly used steps/technology and avoid the patent? There is now almost a requirement for non-obviousness in the 101 test for subject matter eligibility.

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