There is the distinct possibility that Section 101 is finally returning to the Supreme Court. In American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, No. 20-891, the Supreme Court invited the Solicitor General for the views of the United States on the pending petition for certiorari. In response, Solicitor General recommended granting the petition, at least with respect to one of the questions. The SG’s brief underscores the consensus that Alice has spawned more uncertainty than predictability.
Read MoreAnyone who has followed Federal Circuit cases addressing Alice decisions has felt the whip-saw brain squeeze of trying to reconcile them all. While some clear guidelines have emerged that have made assessing whether a given patent is susceptible to Alice, there remains a thick, gray cloud over how, exactly, the two-step framework applies in practice. Two recent decisions from the Federal Circuit, Berkheimer v. HP and Aatrix Software v. Green Shades Software, may have established some more concrete guidance on handling early Alice motions in patent cases.
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