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« Cutsforth Inc. v. MotivePower, Inc. | Main | NRT Technology Corp. v. Everi Payments, Inc. (PTAB 2016) »

February 01, 2016


The writing of the law that is Alice can be - and should be - seen as void for vagueness.

(That's a translation of the phrase used "lack of certainty" into a bit more impactful legal terminology)

If the Court wants to play the role of scrivener (already a separation of powers issue), then the results of that scrivining STILL must pass muster on other constitutional protections. And while void for vagueness is often presented for criminal matters, the protection does apply in the civil realm when such things as property are affected.

"Nonetheless, when viewed on their faces, the two outcomes further illustrate the lack of predictability that pervades the patent system post-Alice."

Hey Michael,

How very true. Continuing proof that the subjective Alice test is utterly broken.

I agree completely that the Alice test, as currently employed, is an utter crapshoot- which means both inventors and accused infringers are being denied justice.

These defendants are now on the hook for hundreds of thousands or a million-plus dollars in fees before the CAFC invalidates the patent on Alice grounds.

At the very least, as currently operated, a 12(b)6 loss on 101 grounds should get an automatic interlocutory appeal.

This situation is intolerable.

"At the very least, as currently operated, a 12(b)6 loss on 101 grounds should get an automatic interlocutory appeal."


There is no way that the courts will grant such "automatic" interlocutory appeals. Grants of interlocutory appeals are rare because it upsets the normal litigation process of having all issues resolved at the trial level before allowing appeal. Changing that normal litigation process would require at least a change in the Federal Rules of Civil Procedure which has about a "snowball's chance in hell" of happening.

EG, I agree they are rare and should be.

However, when you have a single appeals court with specialized expertise in a single, common question that is not being reliably adjudicated in the lower courts, it's just a massive waste of resources (i.e injustice) to litigate all the way back to the same point.

If we had a working Congress, it would be a single line of legislation. "Subject matter eligibility findings of district courts shall be immediately appealable to the CAFC"

That way, the question is settled and the litigants know where they stand millions of dollars sooner.

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