Patentability Of Software Post-Alice: How Do Courts Determine Whether An Idea Is Abstract?

Since the Supreme Court's decision in Alice Corp. v. CLS Bank Int'l on patentable subject matter, courts have tried to follow the prescribed framework. Under Alice, patent claims are invalid if directed to "abstract ideas" and if the ordered combination of those abstract ideas does not amount to an "inventive concept" or is not "meaningfully limited" in scope to prevent sweeping preemption of the field of invention. But what does it mean to be an "abstract idea" or an "inventive concept"? Six months after the Supreme Court's decision in Alice, these legal constructs are far from clear.

In his majority opinion in Alice, Justice Thomas wrote, "we need not labor to delimit the precise contours of the 'abstract ideas' category in this case." Alice Corp. v. CLS Bank Int'l at 2357 (noting that the concept at issue, "intermediated settlement," is similar to the basic economic building blocks of the unpatentable "risk hedging" concept in Bilski and therefore