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You Had One Job: The Federal Circuit Can and Should Fix Section 101

It is getting tiring to read in case after case the Federal Circuit saying that they are forced by Alice or Mayo to find real innovation to be patent ineligible. This is not true. Have the judges lost their ability to distinguish cases based on the underlying facts? This is a skill taught in the first semester of law school, and one that separates those who will ultimately become lawyers and those who will drop out and pursue other avenues. But for some reason, the Federal Circuit is applying Mayo and Alice, two cases where the patent claims did not cover any innovation whatsoever, to strike a dagger through the heart of the innovation of tomorrow. Is this what the Supreme Court has mandated? While we are quick to say—for good reason—that Supreme Court precedent on 101, from Benson to Flook to Diehr to Chakrabarty to Bilski to Mayo to Myriad and ultimately to Alice, are incomprehensible, incoherent and most importantly irreconcilable with each other, we give the Federal Circuit a complete pass, despite the fact that CAFC precedent is at least equally incomprehensible, incoherent and irreconcilable.

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