Avoiding the Rabbit Hole: An Ontological Model for Determining Section 101 Patent-Eligibility under Alice, 17 J. Marshall Rev. Intell. Prop. L. 192 (2017)

In Alice Corp. Pty. v. CLS Bank International, 134 S. Ct. 2347 (2014), the Supreme Court established a two-part test for determining whether a patent claim is directed at the patent-ineligible category of abstract ideas. Unfortunately, however, the Supreme Court in Alice offered little clarification as to what constitutes an abstract idea—leaving innovators and competitors uncertain as to their legal rights. Likewise, instead of creating a definitive test, the Federal Circuit has proceeded by engaging in self-referential argument by analogy. This article, Avoiding the Rabbit Hole: An Ontological Model for Determining Section 101 Patent-Eligibility under Alice, argues that the Supreme Court and Federal Circuit case law can be synthesized to provide a comprehensive set of rules to help guide the Alice analysis.