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35 USC 101 as interpreted by the Supreme Court does not allow patent claims that merely describe abstract ideas to be examined for a patent. How would the Court's precedent apply in a case in which the inventor can show that the description of a particular claim can be described more abstractly, ie, at a higher level of abstraction?

  • What is the precise language concerning "abstract ideas", and in what Supreme Court decision(s) does it occur? On general principles, I don't see how showing that more unpatentable descriptions are possible salvages a description that a court judges to be unpatentable because it is "too abstract". Do you get to keep your job (or girlfriend) just because you can find someone who is less suitable than you for the role? – user96 Sep 10 '12 at 20:40
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    Everything can be described at a higher level of abstraction. – g33kz0r Sep 10 '12 at 22:12
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“Abstract ideas” does not mean what your question assumes it means. What it does mean will only become clear over (likely quite some) time; but an abstract description of something does not make it an “abstract idea” in the sense of any probable interpretation. The desire, as expressed by the courts, appears to be to prevent the patenting of “a fundamental truth; an original cause; a motive”, but it is unclear how to achieve that, or where to draw lines. Various tests have been described and proposed, but it remains to be seen what those tests mean in practice.

In short, as long as an invention meets other criteria of patentability, the level of “abstraction” of its description — or of a potential other higher-level description — is unlikely to have much bearing, one way or the other.

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