Federal Circuit Judge Calls for a Fix to the “Abstract Idea” Mess: Part 2

July 25, 2018
Post by Kirk M. Hartung

Last week, I began a blog series on the "Abstract Idea" and hope you will continue to follow this critical topic. The previous post from last week can be found here

The concerns regarding the current state of the law regarding patent eligibility raised by Judge Plager in his recent dissent in the decision by the Court of Appeals for the Federal Circuit in Interval Licensing (see previous blog post on this subject) are not new or limited to a small group of patent lawyers, owners, or judges.

Judges and lawyers have a shared belief in the uselessness of the abstract notion of “abstract ideas” as a criterion for patent eligibility. Judge Plager suggests that the current statutory criteria for patent validity set forth in the Patent Act eliminates the need for the abstract doctrine. The “abstract ideas” doctrine has proved unworkable and adds nothing to ensuring patent quality that the statutory requirements do not already provide.

Judge Plager acknowledges that there is no particular incentive for the Supreme Court to immerse itself in this incoherent doctrine that has taken on a life of its own, such that it will take special effort by judges and the patent bar to get the Court’s attention. Otherwise, perhaps Congress can provide a fixed, “though waiting for that may be the ultimate test of patience.”

Judge Plager offered another option for trial courts who are faced with the section 101 abstract idea defense, and the inherent difficulties it creates for the courts. Rather than addressing this issue first, as is often done now, the courts could defer this until after addressing the other statutory requirements for a patent under sections 102, 103 and 112. The two-part Alice abstract idea test for patent eligibility would remain in the case, but only be considered if the patent survives the other validity challenges.

In conclusion, Judge Plager states that the legitimate expectations of the innovation community, as well as basic notions of fairness in due process, compel us to address this §101 conundrum.

Kirk M. Hartung is a Patent Attorney in the Mechanical and Electrical Patent Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit or contact Kirk directly via email at

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