Beyond abstraction: applying the brakes to runaway patent ineligibility

INTRODUCTION I was pleased to read and am now pleased to respond to the commentaries byMinssen and Schwartz1 and byThambisetty2 on my articleDolly andAlice.3 Each of these commentaries offers a welcome comparative perspective to the doctrinal quandaries that I initially pointed out, indicating some prescription for the American patent eligibility problem based upon the parallel European experience. But it seems already clear that the American courts, responding to an avalanche of lower court patent invalidations based on the Alice patent eligibility test, have already begun fashioning their own idiosyncratic response to the common global difficulty of distinguishing patentable subject matter. A set of recent opinions makes clear the determination of the United States Court of Appeals for the Federal Circuit to apply the brakes to runaway abstraction analysis under the Alice test. In some respects this response may indeed parallel that in other jurisdictions, but in major respects it departs from the prescriptions detailed by the commentators.