It Is Time to Fix the Courts’ Section 101 Tests on ‘Directed to …’ and ‘Abstract Ideas’—Whether in Chamberlain or Beyond (Part II)

As we concluded in Part I of this article, the courts are being called upon in The Chamberlain Group v. Techtronic Industries, Inc to respond to an emergency situation in which they must stop the Federal Circuit’s “directed-to” version of the Mayo-Alice test from expanding into, and negating, claims in every subject imaginable. As Chamberlain urges, the patent statute, whether in Section 101 or beyond, does not limit the universe of eligible claims to those where a court can dissect its claim elements into old or “conventional” ones and those that represent the claim’s “patentable advance.” On that point, too, the Patent Act and the Supreme Court have been in unison: You can’t do that.

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