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A Sea Change after Alice: Recent Court Decisions Show Patents Are Vulnerable under Section 101 Attack

Since 2010, the Supreme Court has issued four decisions on patent-eligible subject matter under 35 U.S.C. § 101. In the most recent decision, Alice Corp. v. CLS Bank, the Court continued the restrictive approach set forth in its own precedents in Gottschalk v. Benson,[1] Parker v. Flook,[2] and Diamond v. Diehr,[3] and invalidated patents directed to computerized methods for mitigating settlement risk by using a third-party intermediary. The most significant passage in the Alice decision is that the Court expressly adopted the two-step test it elaborated in Mayo Collaborative Services v. Prometheus Laboratories[4] for all types of patent subject matter issues, including laws of nature, natural phenomena, and abstract ideas.[5]