In the latest opinion in Ultramercial, Inc. v. Hulu, LLC, the Federal Circuit held the claims of Ultramercial’s patent to be unenforceable as directed to patent-ineligible subject matter under the Supreme Court’s so-called reasoning in its June 19 ruling in Alice Corp. v. CLS Bank.

Under this tortured reasoning, Section 101 of 35 U.S.C. is employed as a “gatekeeper” to render claims unenforceable if the court can identify an abstract idea in the claims.  The obvious defect in this approach to patent jurisprudence is that every patent claim has as its basis an abstract idea and can thus be found to be patent-ineligible based on how much or little effort the court desires to exert to find a concrete and tangible expression of the abstract idea.

At this point, patent applicants have no concrete guidance from the Supreme Court or Federal Circuit regarding what type of features or how many features are required to be present in a claim for the claim to escape the “black hole” of abstraction.  This is particularly the case for software-implemented inventions because in many cases the only tangible or concrete element of a claim — the computer executing the software — is dismissed as an insufficient to overcome the categorization of a claim as being directed to an abstract idea.

What is the appropriate solution? For the courts, it is to adopt the reasoning of the European courts, where novelty and inventive step (not patent eligibility) are used to prevent issuance of patents that are “too abstract.”  For US applicants and practitioners, it is to emphasize — to the extent possible — the concrete and tangible elements of the claim … and to pray that the courts come to their senses before this tragedy ends like Hamlet and even the good patents die.