Congress recently released a reform proposal for Section 101 of the U.S. Patent Act. The draft included the following language: “No implicit or other judicially created exceptions to subject matter eligibility including ‘abstract ideas,’ ‘laws of nature, or ‘natural phenomena,’ shall be used to determine patent eligibility under Section 101, and all cases establishing or interpreting those exceptions to eligibility are hereby abrogated.” This is a blatant attempt to overturn Alice Corp v. CLS Bank International, Mayo Collaborative Services v. Prometheus Laboratories, Inc., and related cases which created the judicial exceptions that prevent the patenting of “abstract ideas,” “laws of nature,” and “natural phenomena.” However, simply abrogating the cases with language like the above will not be enough to survive the Supreme Court. Without significant alterations to the proposed text, the effort to abrogate the judicial exceptions is doomed to failure. Section I of this article briefly explores the reasons Mayo and Alice need to be abrogated. Section II investigates the legal and philosophical underpinnings of Mayo and Alice. Section III discusses how Mayo and Alice’s legal underpinnings doom the current legislative proposal. Contrary to the opinions of some, these cases do have a constitutional basis and interested parties ignore that basis at their peril. Section IV provides alternative ways forward.
Why Removing 101 Won't Be Enough and What to Do Instead,
N.C. J.L. & Tech.
Available at: https://scholarship.law.unc.edu/ncjolt/vol21/iss3/4