The same factual analysis required in Berkheimer under step 2B should apply to fundamental economic practice analysis of claims under step 2A. The questions have similar factual underpinnings in both steps. Applicants, when faced with economic based claims and particularly blockchain-based claims, should argue that whether a claim is directed to a fundamental economic practice is a fact question that has three parts. (1) The claims should be directed to a “fundamental” economic practice; (2) The claims should be directed to practice it has been “long” practiced in the system of commerce; and (3) The claim should be directed to a “prevalent” practice in our system of commerce. Each of these fact questions requires supporting evidence which should fall in the same four categories outlined in the April 19, 2018 Memorandum.
The post Blockchain Patenting Strategies in view of the Berkheimer Decision appeared first on IPWatchdog.com | Patents & Patent Law.
