Turning the Tide: Patent Subject Matter Eligibility at the Federal Circuit
Recent decisions from the United States Court of Appeals for the Federal Circuit from 2016 and 2017 suggest a loosening grip and increasing flexibility of the two-part Mayo/Alice framework that has dominated the question of patent subject matter eligibility under 35 U.S.C. § 101. In fact, in 2014 after the Alice decision, just one Federal Circuit case addressing 101 challenges was ruled to have eligible claims. Although there were no 101 eligibility affirmations in 2015, there were five such cases in 2016 alone. Fewer than five months into 2017, there have now already been two 101 decisions from the Federal Circuit finding patent eligible claims (see Figure 1 and Table 1).