The latter quote may be a sign that the Court has heard the concerns from numerous parties about how the Alice test is being misapplied. For instance, it is all too common for a judge or a USPTO examiner to: (1) view a claim at a 10,000 foot level to remove from it all devices and machines, (2) this subjective “gist” of the remaining aspects of the claim is declared abstract, and (3) when the devices and machines are examined separately from this gist of the claim, they are determined to be no more than routine and conventional, adding no patentable weight. Following such a formula, virtually any software or business method claim can be rendered invalid.
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