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Solicitor General Signals Supreme Court to Address the Confusion Caused by the Abstract Idea Exception to 101

While declining to recommend the Supreme Court should grant certiorari in Hikma Pharmaceuticals USA Inc. v. Vanda Pharmaceuticals Inc., the Solicitor General nudged the Supreme Court to reconsider its abstract idea exception established in Bilski and Alice, as follows:

Although Mayo is the most immediate source of confusion, the uncertainty ultimately stems from the broader framework articulated in the Court’s recent Section 101 decisions.  The Court’s reconceptualization in Bilski v. Kappos, 561 U.S. 593 (2010), of inherent, long-recognized limitations on Section 101’s affirmative scope as freestanding, atextual “exceptions,” id. at 601, has given rise to an array of difficult questions.  The confusion created by this Court’s recent Section 101 precedents warrants review in an appropriate case.

While a fix to the 101 confusion would be welcome, there is little hope the Supreme Court could ever deliver it.  Given how metaphysical and generally incomprehensible the abstract idea exception is, nothing short of total disavowal can restore 101 jurisprudence to a sensible state consistent with the rest of the world.  Hopefully Congress will get around to a legislative fix soon.

© 2020 Schwegman, Lundberg & Woessner, P.A. All Rights Reserved.National Law Review, Volume IX, Number 344

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About this Author

Steven Lundberg, Schwegman Lundberg Law Firm, IP Attorney
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Steven Lundberg is a registered patent attorney and a founding partner of Schwegman, Lundberg & Woessner. His practice is focused on patent protection for software, medical and telecommunications technology, and related opinion and licensing matters. Steve received his B.S.E.E. in 1978 from the University of Minnesota, and his law degree from William Mitchell College of Law (J.D., 1982). He has published and spoken widely on software and electronic patent protection, is active in the Computer and Electronics Committee of the American Intellectual...

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