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July 19, 2017


My father seemed to believe that every mechanical job could be effectively handled with slip joint pliers. This seems to be the situation with the type of case highlighted below where anytime there’s a 103 or 112 issue that is more easily decided early and outside of a jury, well, we’ll say the claimed invention is conventional (103 tone) and/or overbroad (112 tone) and do the Alice two step, throw the bum out with 12(b)(6). Now, I don’t mind throwing out claims that are directed toward the abstract (with nothing more), but my feeling (and I look at many more 101 decisions than your average patent lawyer) is that the court system is doing a bad job in terms of handling patentability issues around claims with heavy 102/112 ramifications that seem to be directed toward patent eligible subject matter. For certain types of claims, the patent eligibility filter seems to be getting just too narrow for the tastes of many patent practitioners.

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