The U.S. Patent and Trademark Office, on Jan. 7, issued new examination guidelines to address the often-criticized unpredictability with determining patent-eligibility of abstract ideas after the U.S. Supreme Court’s decision in Alice v. CLS Bank (2014).

The unpredictability arises, in part, because whether a claim is considered to be directed to an abstract idea (Alice step 1) is controlled by precedent rather than by any definition of what an abstract idea is. Therefore, demonstrating patent-eligibility has invariably required making strained analogies to previously decided cases, even when the technologies involved are not at all similar.

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