Andrew Kanel


After the Supreme Court’s decision in Alice Corp. v. CLS Bank, there has been an increase in Federal Rule of Civil Procedure (Rule) 12 motions to dismiss for lack of patentable subject matter. These motions are often granted at the district court level and are predominantly upheld by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). This trend creates a hostile environment for inventors and patent holders and threatens to curb innovation in various areas including computer software, biotechnology, and medical diagnostics. The Federal Circuit’s current application of the Alice test at the Rule 12 stage favors alleged infringers and is inconsistent with the standards for evaluating pleadings. Additionally, the Alice test is not conducive to being performed at the pleading stage of litigation. This paper argues that the Federal Circuit should instruct the district courts to refrain from deciding patent subject matter eligibility at the pleading stage of litigation.