As Alice Uncertainty Persists, US Senator Fuels Section 101 Policy Debate

March 11, 2021

Perhaps the most heated patent policy debates in the past year have involved the Patent Trial and Appeal Board and standard essential patent licensing, but Alice and patent eligibility have remained a source of uncertainty for litigants despite flying somewhat under the news radar lately. While the Federal Circuit’s Berkheimer and Aatrix opinions have significantly narrowed the availability of Alice for early eligibility challenges, a persistent criticism from various stakeholders has been the difficulty that courts face in applying the Alice test consistently. In recent weeks, a particularly prominent critic of that jurisprudence—Senator Thom Tillis (R-NC)—has brought this issue to the forefront once again, discussing patent eligibility in Senate hearings and even filing an amicus brief with two other familiar figures in the patent space.

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