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Why software patent eligibility is not an issue at the EPO – and what the USPTO could learn from that

February 7th, 2017 |  Published in Intellectual Property

USPTO article


7 February 2017 – Bastian Best has a great post … rant? … on the flaws of the infamous “abstract idea” test. He says the Mayo/Alice two-step test causes much more harm than good and poses three questions:

  • What kinds of ideas are too “abstract” for a patent? Doesn’t every invention start with an idea? Who can tell the difference between an abstract idea and a “concrete” idea (I wonder what that is)?
  • When is an invention “significantly more” than the abstract idea? How much “more” does it take?
  • Some court rulings suggest that the Mayo/Alice test requires applying more than “well-known” concepts. Is this a hidden novelty test? Isn’t a hammer patent-eligible simply because it’s a man-made technical device, irrespective of it being known for decades?

He asks: “What if the USPTO just copied the EPO’s “any hardware” test when it comes to patent-eligibility?” And he includes a nifty video explanation of the “any hardware” test.

It’s a great post (click here).


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"The mind that lies fallow but a single day sprouts up follies that are only to be killed by a constant and assiduous culture."
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