What do pornography and patents have in common?  Read on to find out!

Today the United States Supreme Court has held, in Alice Corporation v. CLS Bank Int’l, that claims drawn to an abstract idea that merely require generic computer implementation fails to transform that abstract idea into a patent-eligible invention.

Despite its decision, the Court gives surprisingly little guidance one what an abstract idea actually IS. As a result, there will be LOTS of commentary on this case, with a vast number of interpretations. In any event, here is how I read the tea leaves: The Court states that the framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts is a two-step process.  First, you determine whether the claims at issue are directed to one of those patent-ineligible concepts. Second, if so, review the other matter in the claims to see whether the additional elements transform the nature of the claim into a patent-eligible application.   Step two of that process is a search for an ‘inventive concept’. — The court states that an inventive concept is an element or combination of elements that is sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the ineligible concept itself.  Good luck with that circularity.

And so the search for an inventive concept begins.  The above definition of an inventive concept is not great.  As a result, I predict that courts (and the USPTO) will say something that amounts to: you know it when you see it, sort of like another subject matter that the Court has ruled on in the past (Hint: see Justice Stewart’s concurring opinion in Jacobellis v. Ohio, 378 US 184 (1964)).The full case cite is: Alice Corporation Pty. Ltd. v. CLS Bank International et al., 573 U.S. __ (2014).