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The Three Properties of Patent-Eligibility: An Empirical Study

By Michael Borella and Ashley Hatzenbihler — Patent eligibility is a bit of a mess these days. Ever since the Supreme Court handed down the Alice v. CLS Bank decision six years ago, the distinction between what might be subject matter that can be patented and what is not has been blurry at best. Famously, the Court legislated its own two-part test to determine whether claims are directed to patent-eligible subject matter under 35 U.S.C. § 101. One must first decide whether the claim at hand involves a judicially-excluded law of nature, a natural phenomenon, or an abstract idea. If…

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