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January 24, 2016


"The § 101 inquiry may contain underlying factual issues, but here, the Federal Circuit performed the § 101 analysis without resolving fact issues."

Hey Joe,

Another serious problem with the broken Alice test for determining patent-eligibility under 35 USC 101 that this case brings out: the factual record is deemed either irrelevant or can be ignored at the court's leisure. How can you make determinations that something is a "fundamental economic practice," can be "implemented without a computer," etc., without factual evidence to support it. In essence, the Federal Circuit is improperly encouraging taking judicial notice of facts that are not like the "sun rises in the east and sets in the west."

I'll be frank: patent-ineligibility determinations under 35 USC 101 are being used by the judiciary to improperly avoid the factual determinations required to determine obviousness under 35 USC 103. If you did this sort of thing with a determination under 35 USC 103 (as should have been done), failure to make/consider findings of fact would be a fatal flaw in the judgment in view of Graham v. John Deere. And this mess is primarily the fault of the Royal Nine.

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