but some argue these decisions have only clouded the issue. Consider for example the CAFC’s recent opinion in CLS Bank Int’l v.
Alice Corp. (Fed. Cir. 2013) (en banc), in which seven separate
opinions are written that set forth multiple tests for evaluating
patent eligibility under Section 101. Moreover, the only precedential portion appears to be a one-paragraph per curiam opinion affirming the district court’s holding that the asserted method
was ineligible subject matter.
In his concurring opinion for five members of the court, Judge
Lourie articulated a “significantly more” test in which the court
must identify the abstract idea that is at risk of being exclusively
reserved. Once identified, the abstract idea is removed from the
claim and it is determined whether the remainder of the claim
“contains additional substantive limitations that narrow, confine,
or otherwise tie down the claim so that, in practical terms, it does
not cover the full abstract idea itself.” Regarding computer claims
specifically, Lourie clarified that patent eligibility is not conferred
“[u]nless the claims require a computer to perform operations
that are not merely accelerated calculations” and that “simply appending generic computer functionality to lend speed or efficiency to the performance of an otherwise abstract concept does not
meaningfully limit claim scope for purposes of patent eligibility.”
On the other hand, Chief Judge Rader proposed a “meaningful limitations” test for determining the patent eligibility
of claims involving abstract ideas. This test requires a court to
“consider the asserted claim as a whole when assessing eligibility,” as opposed to removing the abstract idea from the claim
and then considering the remaining limitations. For computerrelated claims, the question in Rader’s view was “whether the
claims tie the otherwise abstract idea to a specific way of doing
something with a computer, or a specific computer for doing
something; if so, they likely will be patent eligible, unlike claims
directed to nothing more than the idea of doing that thing on a
computer.” In other words, “where the claim is tied to a computer in such a way that the computer plays a m X[?[??[ ??B?[? H \???X[??H? H?Z[YY[??[?[?[? H?Z[H?\??? ?Y[\ ?\? X[ H[ \?\??[? [?\? Z[??X?? ?X?YXK B??Z[H\? ][?[Y?X?K??'B??]?]H ?X?Y[?X[?[?[? H[???\? ? H ]Y\?[??? ?X? \\????\ ]\?Z[\[Y[?Y ???\??\? ]X[Y?H\?][? Y[Y?X?H ?X??X?X] \? ?[XZ[?? ?Y?YK???YH?ZY[??B?\??Y[? ?]??[? H?\?H]?\??X?YX??K?] [?[ B???\? ?\?X?\?H??Y? [[?H \?????\??[?X? ?Y?\?][?? ?X?][?\??[???\? ?[Z?HX^H]?H ?\ H H??Y??[?? \?[] H? \? ? ?] [\ ???HH???[??\?\? ? ?X? \??\?[?????[??[??[? \?Y?[ ???? ?
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