It is time to define the term ‘Abstract Idea’

In its infinite wisdom, the Supreme Court has decreed that to determine whether a claimed invention contains patent eligible subject matter requires a more in-depth inquiry than the statute requires. 35 U.S.C. 101 says that a claim constitutes patent eligible subject matter if what is claimed is a machine, process, article of manufacture or compound. The Supreme Court has, however said there are three judicial exceptions to what is otherwise statutorily patent eligible – laws of nature, physical phenomena, and abstract ideas. The abstract idea exception is what applies to computer-implemented methods (i.e., software).

The Supreme Court has steadfastly refused to define the term ‘abstract idea’ even though it is essential to their extra-judicial test for patent eligibility. The Federal Circuit, seemingly uninterested in bringing any certainty to patent laws or Supreme Court pontifications, has said that if the Supreme Court does not need to labor to define the term ‘abstract idea’ then neither do they. See Enfish v. Microsoft.

Is this some kind of petty turf war or schoolyard kerfuffle?

Clearly, the Supreme Court said in Alice v. CLS Bank that they did not need to define the term ‘abstract idea’ because they are wholly incapable of coming up with a suitable definition, and they seem to understand that fact. A reasonable, thoughtful, professional bunch would have realized that their unwillingness to define the term was a sign. They didn’t need to labor to define it, as they put it, because they are the Supreme Court. Incapable of thoughtful self-reflection, like a boss hopeless over his or her head, they spit some commands and ordered the rest of us to figure it out. They are, after all, the Supreme Court.

The Federal Circuit would have none of it. If the Supreme Court doesn’t need to define the term ‘abstract idea’ then why should the Federal Circuit? After all, the Federal Circuit judges are nearly Supreme Court judges, right? They are sorta like Supreme Court judges except for two to four patent cases a year. So if the Supreme Court doesn’t have to labor to define the term ‘abstract idea’ then certainly a nearly Supreme Court for patents can’t be expected to define this critical term just so the entire industry can understand the test that is applied against them and their already issued property rights on a daily basis.

Are you kidding me? This isn’t a petty turf war or schoolyard kerfuffle. It seems more like a sketch comedy featuring the Monty Python players – patent edition. Why don’t we just tie a rope around the necks of the inventors and see if they float? Such an approach would be almost more enlightened than the hide the ball test we have now. At least we’d all know the rules!

It seems that the industry and public are caught between bickering parents in a patent version of divorce. Rather than engage in any rational thought the two Courts that hold America’s patent fate seem paralyzed by suspicion, distrust and the belief that it is up to the other one to fix the mess. The Federal Circuit has said as much on several occasions, with Federal Circuit judges saying that further guidance needs to come from the Supreme Court, not the Federal Circuit. But that’s not how the system works. The Supreme Court takes a couple cases a year and it is up to the Federal Circuit to make sense of the very broad brushes painted with by a bunch of generalist technophobic judges who never have and never will understand patent law. The role of the Federal Circuit is to take irreconcilably inconsistent precedents of the Supreme Court and make some sense of it all, at least as it applies to real fact patterns, technologies and innovations. It is time for the Federal Circuit to collectively realize that they too took a Constitutional oath. It is time for them to realize that the Supreme Court has never forbid the Federal Circuit from defining the term “abstract idea,” and defining the term is the only fair thing to do.

The industry is collapsing all because no one in a black robe has the guts to define the critical term that is the core of a test that is whimsically applied in arbitrary and capricious fashion. And why? The test is whimsical, arbitrary, and capricious precisely because it is unpredictable and never repeatable. Of course, the reason it is unpredictable and never repeatable is because different judges and panel configurations apply it based on their own subjective views because no one has ever taken the time to define the key term; no one cares to even attempt to interject objectivity to what is a hopelessly subjective, unpredictable and arbitrary test.

To call all of this idiotic would be an insult to those things that are merely idiotic. You simply cannot have a test where the core concept used to evaluate is undefined. Such an undefined test ensures a lack of fair and equal treatment, and is the very type of subjective decision making that educated people laugh about when it takes place in far away third world countries. How is it possible that so many judges find it possible to apply a undefined standard without noticing the obvious unfairness?

As long as the term ‘abstract idea’ remains undefined equal application of the law will be both a theoretical and practical impossibility.



Warning & Disclaimer: The pages, articles and comments on do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of

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28 comments so far.

  • [Avatar for American Cowboy]
    American Cowboy
    May 22, 2017 11:33 am

    Anon, I agree that Scotus is the source of the “abstract idea” problem. I also agree that it is a prime example of judge-made law.

    That does not mean that I do not also agree that there are a bunch of lousy claims floating around. Frankly, I think many in the patent bar took State Street as a license to write some pretty darned abstract claims — abstract in the sense that the words were pretty meaningless; reading some of those claims and understanding what they meant was like nailing jello to the wall. The subject matter that the inventor came up with may have been worthy of patenting, but not as “defined” by those claims.

    MPEP 2173.04 Breadth Is Not Indefiniteness [R-07.2015] is the only mention of anything like “undue breadth” in the MPEP, and it says to use wording other than “undue breadty” to reject.

  • [Avatar for Anon]
    May 22, 2017 11:17 am

    While you state that “there used to be,” is it not the fact of the matter that “undue breath” is still very much around as a proper rejection under 35 USC 112?

    Is this not a problem then of the Court’s own making when the Court (and no one forced the Court to do this, mind you) itself decided to attempt to rewrite the words of Congress and the Court itself decided to use section 101 as the place where the Court inserted their scrivening?

    Seeking out then other parties to blame (such as the USPTO and the lower courts) will only lack the clarity to be achieved with a proper root cause analysis.

  • [Avatar for American Cowboy]
    American Cowboy
    May 22, 2017 09:37 am

    I tend to agree with Paul. There used to be a PTO rejection called “undue breadth,” and some of the claims that get presented these days would die if it were still around.

    Essentially, the notion of the undue breadth rejection is that the inventor invented a species, but presented a claim that was broad enough to read on the species, a sub-sub-genus of which the species is a part, a larger sub-genus and the genus; and perhaps a couple of neighboring genuses.

    Samuel Morse’s patent was an early example of such undue breadth claiming. He invented a telegraph system and claimed any means of transmitting information over a distance with electric signals. Notice how that claim reads on the internet, which was not invented for another 150 years!

    Scotus invalidated Morse’s claim as being abstract, not for undue breadth. Many of the claims that are falling post-Alice would likely not survive get out of the PTO if it could reject on the ground of undue breadth, which makes more sense conceptually than the “we know it when we see it” abstract idea test.

  • [Avatar for Anon]
    May 20, 2017 06:42 pm

    Sounds like “Miller time,” Mr. Cole.

    First round’s on me.

  • [Avatar for Paul Cole]
    Paul Cole
    May 20, 2017 06:36 pm

    @ Anon

    Many thanks indeed for your last comment.

    You have put the USPTO and its practice on my radar.

    One of the greatest areas of deficiency is in its ability to analyze and react to decisions of the court, the 2014 natural product guidelines which announced to an astonished world that gunpowder is a product of nature being a prime example.

    I completely agree with you about examination quality, but what we can do about it is more problematic.

  • [Avatar for Anon]
    May 20, 2017 03:44 pm

    Mr. Cole, it is indeed a waste of space if all that YOU are going to do is clench tight your eyes and ignore everything else that I have said.

    A waste of space – for you.

    For others though, not so intent on preserving a fallacy that you seem intent on preserving, not such a waste.

    If you want more than just my last comment, feel free to open your eyes and read all of my comments on this thread.

    Here are a few gems that you might gather:

    – There is more than one type of quality at issue.
    – The type of quality that is a driver is examination quality.
    – This examination quality also happens to be something that the Office can control, as opposed to another type of quality that the Office cannot control (drafting quality).
    – When advocating for a better system, one should advocate for changes in true drivers, and not distracting side pieces.

    There are of course other items that I have provided to you in other contexts, that have not been touched upon here. These other items are more in line with your own examples of “what more you can do” (and have done) as you list in post 17. But you seem to have missed my point (yet again), that merely aiming for Best Practices as THE quality solution is simply a distraction from looking at the true driver of quality. I feel sorry for you that instead of trying to understand this, that you instead have decided to take umbrage and to then try to paint posts as merely “fraudulent” or “angry.” That too is a distraction technique and does not change the fact that it is you that have decided to not see the point that I have presented. “More” may indeed be needed for a useful discussion, but that “more” is due from you – and focusing merely on my last comment will not get YOU where YOU need to be.

  • [Avatar for Paul Cole]
    Paul Cole
    May 20, 2017 12:30 pm

    @ Anon

    I fear you remind me of the angry man in the Monty Python argument sketch who abuses Michael Palin but says nothing of substance. Your last posting is full of abuse, but says nothing practical I can do in addition to what I am already doing, and contains no useful information whatsoever. It is, I fear, a waste of space. I am anxious to receive advice and comments from my US colleagues but to justify a useful discussion more is needed than in your last comment

  • [Avatar for Anon]
    May 20, 2017 10:26 am

    Mr. Cole,

    Your reply is itself fraudulent, as I need not give you any “suggestions” in correcting your own characterization.

    Merely necessary is that you understand that your statement is false – FOR THE REASONS GIVEN.

    You seem to have now repeatedly glossed over the points that I have presented, and now ask for me to present some points….

    Bad form, dear chap.

  • [Avatar for Paul Cole]
    Paul Cole
    May 20, 2017 08:40 am

    @ Anon

    I am utterly confident that the admirable legislative changes put forward by AIPLA will receive support in Congress from all sides, will be passed with an absence of filibuster and with unprecedented speed, and will be signed into law by President Trump on 30 February 2018, which will turn into a virtual day of jubilee for our whole profession and for the inventors whom we serve.

    In 1720 —during the South Sea Bubble there was promoted a company that advertised itself as “a company for carrying out an undertaking of great advantage, but nobody to know what it is”. Insofar as you allege that my advocacy is a “noble distraction” but not all that I can do, but fail to explain what else I should do with detail and precision, you place yourself on a level with the empty and fraudulent speculators of that time.

  • [Avatar for Anon]
    May 20, 2017 07:07 am

    Your care of an individual client and your posting on blogs reaching beyond individual clients are two very different things.

    For all your implied protests then concerning the fact that I am calling you out for aiming at the wrong thing, you continue to aim at the wrong thing and continue to make what amounts to no more than excuses for aiming at the wrong thing.

    As I clearly stated, there is more than one “quality” on the table, and drafting quality is just not the driver.

    Your continued efforts then to ONLY focus on drafting quality as if it were the driver become a disservice to the more important issues facing our profession.

    While perhaps a noble distraction, your advocacy here remains a distraction.

    It also remains incorrect that such a noble distraction is “all that you can do.”

    I certainly hope that you can do more than just distract.

  • [Avatar for Paul Cole]
    Paul Cole
    May 20, 2017 01:35 am

    Further @ Anon

    Over the years I have come to realize that litigation and patent-adverse decisions are not best treated as the subjects of complaint and despair but as accidents deserving investigation in the same way that aviation accidents receive investigation in terms of their cause and remedial measures. In much of my writing, my efforts have been devoted to helping my colleagues avoid identifiable pitfalls that could cause embarrassment. The Mayo/Alice situation is fundamentally no different – in each case we need to identify what went wrong and see whether there are ways of doing better next time.

  • [Avatar for Paul Cole]
    Paul Cole
    May 20, 2017 01:24 am

    @ Anon

    If I am prosecuting a case for a client, all I can do to avoid Section 101 problems is to exercise care in drafting the description and claims and prosecuting them through the USPTO (via my US colleagues).

    In terms of further advocacy, I have
    * written numerous postings and comments on Mayo and subsequent decisions, pointing out where possible the errors and misjudgements that are apparent.
    * submitted lengthy and detailed comments on appropriate practice to the USPTO in the field of biotechnology after the Myriad decision in response to their 2014 consultation, including numerous worked examples.
    * submitted an amicus brief in person to the CAFC in Sequenom, and served as lead author for amicus briefs to the Supreme Court in that case on behalf of CIPA and the EPI.
    * Assisted with papers and comments at various conferences in the US.

    If you can think of anything more that a professional working outside the US could do, I would be glad to hear what that might be. But in preparing comments and submissions it has been necessary to read parts of the specifications that have come before the courts in the cases on which I have commented. Shortcomings in terms of description drafting and claim scope have provided pretexts for the judicial attitudes and decisions that have proved so problematic in recent years, and in my considered view based on extended study over the last few years have made and continue to make a significant difference. In the computer/business method field, many patents that come before the courts were drafted in the liberal State Street era, and now face the more challenging standards that apply post Bilski/Alice, and it is our duty to adapt to the new standards and to meet their challenges. If we have clients who have truly discovered new and useful subject matter, our task though difficult is in my view not impossible, though in the computer/business method field our standards of drafting may have to tighten up significantly. So I must respectfully stand behind my GIGO comment.

  • [Avatar for Anon]
    May 19, 2017 08:24 pm

    Mr. Cole,

    Respectfully, “what I am proposing is all that I can do” not only misses the point but is NOT all that you can do.

    The point, even as much as you might dislike it, is that drafting quality simply is not the driver, and not by a long shot.

    What you can do about it is practice the skill of advocacy outside of performing the ongoing Best Practices for your clients.

    As to your GIGO comment, there too, you quite miss the point that a system – constrained to what the Office itself CAN control, and being robust AGAINST the GI portion would make the entire phrase immaterial.

    THAT is what the Office should aim for – for at least the reason that I provided and that you did not comment upon.

  • [Avatar for Paul Cole]
    Paul Cole
    May 19, 2017 05:23 pm

    @ Anon 12

    Since I am not a patent examiner, judge or congressman, what I am proposing is all that I can do. And judging from some of the claims that come before the courts it might be surprisingly effective.

    @ Anon 13

    I seem to remember a slogan from earlier days from software folk: “Garbage in, Garbage out!” Undoubtedly our results will be better if we avoid garbage going in. There is an EPO enlarged appeal board decision that says that whatever the examiner decides the responsibility is that of the instructing attorney, A point to take to heart on both sides of the Pond.

    @ Step Back 14

    The case law was taken from the current MPEP which is a 21st century work, I used the rat-tailed device to point my Turing machine towards the relevant section.

  • [Avatar for step back]
    step back
    May 19, 2017 02:18 pm

    Mr. Cole @11 and apparently having just come out of the 19th century:


    It perhaps may shock the “mind” that apparently a time machine has transported you from the kinder, gentler 1800’s in to these tumultuous times of the roaring 2010’s.

    Much has transpired in the fields of science, philosophy, medicine and even in a field you may have not heard of involving advanced telegraphic like coding that we modernists refer to as the information technologies.

    Regrettably, it turns out that the great thinkers of the mid-1800’s (including Supreme Court Justices of those times) were wrong. Many startling shocks await you.

    Our understandings of the “fundamentals” of science, human ingenuity and “laws of nature” have profoundly changed.

    The strange contraption before you will allow to see and hear about these modern transformations by “clicking” the rat-tailed mouse device you find before you on the next following line. Enjoy your quantum leap into modern times:

  • [Avatar for Anon]
    May 19, 2017 12:37 pm


    Your comment of “With the utmost respect to Michelle Lee, patent quality is not the primary responsibility of any patent office. It is the responsibility of the inventor(s) and the drafting attorney(s). is in simple error as you paint far too broadly.

    There is more than one “quality” on the table here.

    Certainly, there is the quality as you indicate and as I note as Best Practices.

    That however is NOT the main driver of concern.

    Not even close.

    The main driver of concern IS instead examination quality.

    Put it this way: if only drafting quality or examination quality could be improved, which would better resolve the issues plaguing the US system?

    The answer to that question is NOT drafting quality. Even now, more than adequately drafted applications are being decimated in the mine fields of poor examination (and poor mechanisms out in place as a band aid to the poor examination).

    Instead, what the Office actually has control over is providing quality examination.

    If I go to my client with a quality rejection, we deal with it. If the rejection is not a quality one – regardless of the quality of the application itself – nine times out of ten, the client will fight the p00r rejection.

    Further, as should have been learned from the Tafas debacle, discussions of what can be improved in the Office NEED to focus on those things that the Office actually controls.

    Lastly, and more of a minor point, we do NOT want to require “perfect input” because we do want the system open to even pro se applicants and those that will not meet any such Best Practices.

    The better examination process should be robust enough to handle – and handle efficiently and effectively – any level of input quality.

    To the extent that your words drive the focus from where that focus needs to be, your advice (no matter how well-intended) is p00r advice.

  • [Avatar for Anon]
    May 19, 2017 12:24 pm

    Mr. Cole,

    Respectfully (and again notwithstanding the general good advice of Best Practices), your suggestion will NOT address the underlying problem of a Court imposing its policy views into statutory law.

    It simply will not.

    All that your Best Practices advice will do will be to draw the Court’s disdain and admonition against “scriveners.”

    This follows from your own previous advice in regard to taking careful note of what the Justices have done in the past cases.

    I “get” the positive spin that you are trying to provide, and even as I laud the use of Best Practices, your posts remain poor advice for dealing with the actual underlying problem.

  • [Avatar for Paul Cole]
    Paul Cole
    May 19, 2017 11:55 am

    It could do with saying again.

    The only way round the problem is to draft descriptions and claims that are strong enough to meet the Viagra criterion (strong enough not just to pass the Patent Office but also to stand up in court.)

    From the standpoint of eligibility, that means clear and positive compliance with one of the eligible categories.

    For example in the “process” category the key authority is Gottschalk v. Benson (1972) quoting Cochrane v. Deener (1876) (flour milling; affirmed) where Justice Bradley explained:

    A process is a mode of treatment of certain materials to produce a given REIULT. It is an act, or a series of acts, performed upon the subject matter to be TRANSFORMED and reduced to a different state or thing. If new and useful, it is just as patentable as is a piece of machinery. In the language of the patent law, it is an art. The machinery pointed out as suitable to perform the process may or may not be new or patentable; whilst the process itself may be altogether new, and produce an entirely new RESULT. The process requires that certain things should be done with certain substances, and in a certain order; but the tools to be used in doing this may be of secondary consequence.

    If you look at the claim in Mayo, does it stand up to this test? There are two new features which are INFORMATIVE but not TRANSFORMATIVE because the hand of them is required to do nothing further, and two features which are old. As an ordered combination, the claimed subject matter performs an old test, but then in terms of real world actions does nothing more. As I have said on other occasions, the claim simply does not stand up on positive eligibility grounds. Add dose adjustment and administration of the adjusted dose to a patient and you are in a different realm because the result of the test now TRANSFORMS the treatment regime of the patient, but the patent had no such claim.

    Particularly in the computer realm, if you can read claim 1 and say when you get to the end: “so what?” then eligibility may not be upheld. If you cannot discern a new function or result that is the inventor’s own discovery then the chances of the claim being upheld are much reduced.

    Many of our problems are created by over-aggressive claiming combined with inadequate investigation of and documentation of the real invention.

    What was meant by “amplifying” in Sequenom? Amplifying what? All the paternal DNA or only part of it? With what (the space-filling pre-Einsteinian ether or real nucleotides, primers and enzymes)? To what extent (e.g. for fluorescent or radiographic detection)? Why? Male/female detection? Downs detection? The devil, as they say, is in the detail.

    With the utmost respect to Michelle Lee, patent quality is not the primary responsibility of any patent office. It is the responsibility of the inventor(s) and the drafting attorney(s).

    We all know that our clients are at risk on eligibility (as well as 102, 103 and 112). We have had notice of that fact for 5 years or more. Our duty to our clients is to sharpen up our drafting and give the courts (which we know are more hostile than they used to be) less excuse for displaying that hostility.

  • [Avatar for Anon]
    May 19, 2017 10:18 am

    A follow on thought to my post at 6:

    Let’s say “we” (whoever that “we” may be), goes ahead and defines “abstract.”

    Heck, even throw in there that the same “we,” defines “significantly more” and even “technological.”

    Does anyone seriously think that such would be the end of the Court’s intrusions into statutory law?

    One must remember that the only vehicle that we have to use for the task of defining words is…


    Thus, any “defining” will not eliminate the underlying problem.

    That underlying problem is the Supreme Court “interpreting,” or as the case may be, down right re-writing the statutory law in order for them to put their policies in place.

    There is a solution for that.

    That solution does not depend on any “definitions” or additional layers of words that need more words.

  • [Avatar for Night Writer]
    Night Writer
    May 19, 2017 08:50 am

    No one should be naive. The SCOTUS dropped a fire bombed patents and did it on purpose. They knew exactly what they were doing. The created a case so that a fact finder could invalidate all the claims at the SJ stage.

    (Some of this has to do with judicial resources. The courts are not growing but the economy and population is. There are similar things going on in criminal law where there is seldom a trial anymore.)

    I think the only way out for us pro patent people is some type of judicial process at the PTO. Maybe spin out the patent judges and create a separate court that just does validity and completely take it away from the district court.

    But, my friends, we aren’t going back to the old ways unless the courts vastly expand. There are more problems here than just Google.

  • [Avatar for step back]
    step back
    May 19, 2017 02:09 am

    B: +1

  • [Avatar for B]
    May 18, 2017 09:55 pm

    When my older daughter was three, she told me she loved French fries but hated potatoes. When I asked her what she thought French fries were made of, she looked at me – blinking her eyes in incredulity – and replied “French fries are made of French fries.”

    Unlike the SCOTUS and CAFC, my daughter had the excuse of being three years old, and now at 14 she is capable of understanding logically-flawed arguments.

  • [Avatar for Anon]
    May 18, 2017 01:55 pm


    Alas, as has been pointed out, rebuking the Court is simply not enough; changing the (already direct and simple) law with more words is simply not enough.

    Congress has a Constitutional power of jurisdiction stripping. That power can be applied to ANY court (including the Supreme Court) for ANY non-original jurisdiction set of matters. Patent appeals are not a matter of original jurisdiction for the Supreme Court.

    You (hopefully) recognize these premises and how they comprise parts of my real true fix.

    There are of course additional details to attend to, but I would also refer you to the psychological thought experiment concerning conditioning of a group that is subject to the whims of another group (the fire-hosing of simians in a cage of those simians follow their natural instincts to climb a step ladder in the middle of the cage to reach up for a bunch of bananas suspended from the top center of the cage).

  • [Avatar for CW5]
    May 18, 2017 01:12 pm

    That the Supreme Court’s test is hopelessly ambiguous simply confirms it was legislating from the bench. It was substituting its view for the clearly expressed view of Congress, as set out in section 101. Amending section 101 is the only way to fix this mess, and the amendment should be accompanied by a strong rebuke to the Supreme Court

  • [Avatar for step back]
    step back
    May 18, 2017 11:40 am

    Gene @2

    Of course the SCt. laws are applied equally!

    Just more equally to some animals than to others.

    (Hint, Alice v. Big Bank)
    (Hint, Bilski v. Big Oil)

  • [Avatar for step back]
    step back
    May 18, 2017 11:35 am

    In their infinite wisdom (your opening sentence)?

    I think you meant, their “inverse of” infinite wisdom.

    BTW, “laws of nature” are merely a subset of “ideas”. They are the ideas that we lightly haired primates have about how the universe we occupy might be put together. Just because we think it, doesn’t mean it is actually so. As for the “abstract” modifier before the word “idea”, what other kinds of ideas are there?

    As I said, W= 1/N as N approaches infinity.

  • [Avatar for Gene Quinn]
    Gene Quinn
    May 18, 2017 11:31 am


    What you raise is an interesting point. I do think at least some of the judges on the Federal Circuit feel beat down by the Supreme Court, and have gotten the message that they are to do things on a case by case basis (as you suggest). But “on a case by case basis” cannot mean “on a subjective and arbitrary basis.” The Supreme Court has told the Federal Circuit there can be no bright lines (at least not bright lines the Supreme Court themselves haven’t mandated). But that doesn’t mean there cannot be any legal standards.

    I understand what you are saying, but I still stand behind my statement that you cannot have a test where there critical term is not defined and can mean anything to anyone.

    I’ll also just point out that this article deals with ‘abstract idea’ but could also apply, with nearly equal force, to the meaning of ‘significantly more.’ The test applied to determine patent eligibility of computer implemented innovations is fraught with uncertainty and subjectivity. Tell me the panel and I’ll tell you the ruling. That cannot be what we in 2017 accept as equal application of the law.

  • [Avatar for SMK]
    May 18, 2017 11:10 am

    Isn’t that what the Fed Circuit TRIED to do in State Street and in other cases around the turn of the millenium? Didn’t they get bludgeoned for it later with Bilski, etc.?

    I’m not saying the Fed Circuit is completely blameless, but when the Supremes consistently strike down any type of rule and holler “case by case, case by case” (isn’t that easy to say when you get to pick and choose the ~100 cases you hear per year?), can you say CAFC isn’t somewhat justified in saying, “fine, we give up”? SCOTUS consistently decries “arbitrary and capricious”, then goes out and insures it with its patent jurisprudence.