By Michael Borella — There is a theme running through many patent-eligibility disputes that is analogous to baiting-and-switching. One party has claims that recite an invention. The other party characterizes those claims at a high level or generalizes them to the point that much of the actual claim language is largely ignored. Then, the other party argues that the claims as generalized — their patent-eligibility alter ego — are invalid under 35 U.S.C. § 101 for whatever reason. This technique can be remarkably effective. It is also intellectually dishonest, as the thing that is rendered invalid is not what the…
