Imagine you invented a way to perform mathematical calculations all over the world simultaneously. Now, imagine that you cannot patent your invention because it was compared to, and found to contain, the same idea as an abacus. This scenario was the outcome of Alice Corp. v. CLS Bank International.

In coming to its decision in Alice, the U.S. Supreme Court adopted a two-part test that it had previously utilized to analyze the patentability of laws of nature to determine whether the patent at issue met the subject matter patentability standards of § 101 of the Patent Act. Determining the claim contained an abstract idea, the Court then addressed whether the invention was a patentable application and found it was not because “generic” computer implementation did not add “significantly more” to the underlying idea.

Since Alice, courts have invalidated a number of patents for failing to meet this criteria—arguably turning from the plain meaning of the Patent Act and congressional intent. Utilizing the Alice framework, courts have dismissed patent infringement claims in the pleading stages upon labeling them as abstract and citing reasoning as well as utilizing terminology that is more indicative of a § 102 or § 103 Patent Act analysis. While an argument can be made that proactively dismissing some claims in the pleading stages could reduce the prevalence of patent trolls and improve the efficiency of the patent process, this Note argues that the widespread proclivity of courts to invalidate patents under § 101 by utilizing language indicative of § 102 and § 103 analysis robs patent holders of the ability to have their claims analyzed under proper standards and injects subjective and uncertain criteria into the patent infringement analysis that could be avoided by implementing other analytical methods.

As a remedy to the inclusion of § 102 and § 103 factors in the subject matter patentability analysis, this Note advocates that a substantial increase in speed or efficiency generated by an invention should be taken into account in determining if the invention adds “significantly more” to the idea. This would create a tangible bright-line test that would allow the claim to move forward and be analyzed under more suitable Patent Act sections.