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In <i>CLS Bank,</i> the Federal Circuit Agrees to Disagree

By Scott F. Llewellyn and Jason D. Hall

The intellectual property community hoped and expected that the Federal Circuit's en banc decision in CLS Bank Int'l v. Alice Corp. would provide guidance regarding the scope of patentable subject matter under 35 U.S.C. ' 101. Instead, the Federal Circuit's decision created confusion, identifying three competing tests for assessing patentable subject matter under ' 101.

The Federal Circuit's decision included seven separate opinions spanning 135 pages, but the only precedential portion appears to be the one-page per curiam opinion affirming the district court's holding that the asserted method, computer-readable medium, and system claims are not directed to patent-eligible subject matter. Many of the judges agreed on the ultimate result, with seven out of 10 concluding that the asserted method and computer-readable medium claims were patent-ineligible, and five of those seven judges concluding that the system claims were patent-ineligible. But the Federal Circuit was unable to resolve some of the most important issues the case presented.

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