A lot of things are patentable. Under 35 U.S.C. §101, machines, articles of manufacture, processes, and compositions of matter (including new chemical compounds) are patentable. But some things are not: the exceptions are laws of nature, natural phenomena, and abstract ideas.
The Federal Circuit Court of Appeals has many times had to decide what these terms mean. To make that determination; the court applies the two-part test set forth set forth by the Supreme Court in Alice Corp v. CLS Bank International, 573 U.S. 208 (2014). First, the court decides if the claims sought to be patented fall within patent-ineligible subject matter, such as abstract ideas. If so, then in a second step, the court decides if the claims contain some element that transforms the abstract idea into patent-eligible subject matter.
In 2016, the Federal Circuit applied the Alice test to decide whether a method of playing a wagering card game was patentable. In re Smith, 815 F.3d 816 (Fed. Cir. 2016). In that case, the court held that the claimed method of playing the card game was similar to the method of mitigating financial...
