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Analysis: Section 101’s power wanes post-Berkheimer

Ellie Mertens, New York

New data reveals that findings of invalidity and the success of 101-based motions to dismiss have dropped since Berkheimer, the most important US subject matter eligibility case of 2018

Section 101 of the US Patent Act has been wielded like a weapon to take down patents since the Supreme Court’s Alice v CLS Bank decision, which reiterated a two-part test to determine patents’ eligibility.

While Berkheimer v HP,...

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