35 U.S.C. § 101 appears clear on its face as to what inventions are patent-eligible. However, the U.S. Supreme Court has created judicial exceptions and a subjective two-part test. Courts have struggled to apply the two-part test consistently and they continue to use the test to invalidate patent claims at the motion to dismiss stage without the challenger having to provide any evidence of invalidity.

This CLE looks at various Supreme Court and Federal Circuit cases, poses thought-provoking questions, and attempts to identify trends that may help a practitioner determine whether a patent claim likely contains patent-eligible subject matter.