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ARTICLE · 14 SEPTEMBER 2016

What Amounts To Significantly More?

Brinks Gilson & Lione
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The two-part Alice/Mayo test includes an analysis involving three questions, one of which is: "Does the claim recite additional elements that amount to significantly more than the judicial exception?"

United StatesIntellectual Property
Eric Krischke
Eric Krischke
Jonathan Hartley
Jonathan Hartley
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The two-part Alice/Mayo test includes an analysis involving three questions, one of which is: "Does the claim recite additional elements that amount to significantly more than the judicial exception?" This question is asked in Step 2B in a flow chart published by the USPTO in the Federal Register, 79(241), 74618-74633 (2014). Courts have been left to grapple with what constitutes "significantly more," creating uncertainty about what is patentable and what is not. Since the Alice/Mayo decisions, challenges and defenses claiming invalidity of claims under 35 U.S.C. § 101 have increased and patent examiners have not hesitated to reject claims under Section 101. Some recent district court decisions provide a few more guideposts in our journey of discovering what "significantly more" means.

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