If Exceptions to 101 Are Codified, Patent Eligibility Chaos Will Be Worse

By Paul Morinville
April 23, 2019

“If Congress’ words have meaning, we have our first opportunity to fix 101. But if they are instead using the legislation as leverage to extract political donations, we do not have that opportunity and we are all wasting our time.”

https://depositphotos.com/11549768/stock-photo-uncertainty-and-confusion.html

101 clarity, this way.

The Framework rolled out by Congress last week to fix Section 101 law in the United States will not improve the current 101 disaster. It codifies current exceptions and even adds an entirely new exception specifically intended to protect big tech monopolies. Congress is pitifully unserious about restoring our innovation engine.

For more than 200 years, the U.S. patent system was the primary engine propelling the United States to lead the world in virtually every new technology. But over the last 15 years, activists in Congress, the courts and the administration pulverized this engine to benefit a few huge multinationals in exchange for political donations and favors.

Today, the patent system is a complete failure causing technologies critical to our economy, job creation, global technological lead, and national security to flee the U.S. and go to China. In a brutal political irony, the Communist Chinese have a better property rights system than we do here in the U.S.

It is also ironic, and frankly embarrassing, that we accuse China of stealing our intellectual property (IP) in a high stakes international trade war when it is abundantly clear that China protects the Chinese patents of Americans in China, but the United States does not protect the U.S. patents of Americans (or Chinese for that matter) on our own soil. It is a well-known fact that huge U.S. corporations steal patented inventions from small inventors and startups and the U.S. government could care less.

While the list of damage to the patent system is extensive, there are three particularly lethal factors that cause the most severe damage:

  1. injunctive relief is gone;
  2. the PTAB and its corrupt “judges” kill 85% of challenged patents; and
  3. judicially legislated exceptions to patentable subject matter under Section 101 kill another 64% of challenged patents.

Patents in the hands of small inventors and startups cannot attract investment and are now worthless.

The Key Factor: Congress’ Intent

Fortunately, Congress is telling us that they want to fix the 101 mess, so it appears that they may have recognized the threat that China poses by leapfrogging the United States in technologies critical to our national defense.

If Congress’ words have meaning, we have our first opportunity to fix 101. But if they are instead using the legislation as leverage to extract political donations, we do not have that opportunity and we are all wasting our time.

If Congress is attempting to line their pockets, it will pass legislation that leaves the damage of 101 exceptions mostly intact. Hopefully this does not happen, because our innovation engine will be destroyed for many years to come. We will have to wait for the Chinese to hack an aircraft carrier and run it aground before Congress wakes up to address 101 again.

But we will know if Congress is serious about fixing the 101 mess or if they are just entrepreneurial drafters hoping to make a few extra bucks. The answer will be in the legislation.

Big tech needs 101 exceptions, especially those related to software and business methods. These technologies are the core of their business models and products. If they can ensure software and business methods are not patentable subject matter, they perpetuate their monopolies, and that is worth a lot of money.

According to the Framework, Congress would codify a list of categories that will be patent ineligible subject matter – a list of 101 exceptions kept alive.

The Framework proposes the following list:

  • Fundamental scientific principles;
  • Products that exist solely and exclusively in nature;
  • Pure mathematical formulas;
  • Economic or commercial principles;
  • Mental activities.

The first problem with the list is obvious. Nobody can know what these categories mean unless Congress defines them in detail. If Congress relies on the courts to define the categories, nothing will change. Why go to the trouble of rewriting 101, thus adding years of uncertainty as the courts rewrite case law, just to end up in exactly the same place?

Alternately, how can Congress define the categories with enough detail that uncertainty is ended by the legislation? For example, what is an economic principle?  Or a commercial principle?  Is a manufacturing process a commercial principle?  Is an accounting application an economic principle? How can anyone define an economic or commercial principle such that entire fields of legitimate innovation are not denied patent protection?  I submit that it is impossible to define in legislation the rules and tests to determine what is or is not included.

The courts have proven over more than two centuries that they are incapable of determining what inventions are patentable subject matter. The Patent Act of 1952 addressed this failure by using the word “any” in Section 101 to expand subject matter eligibility to encompass just about anything made by man.

“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”

The drafters of the 1952 Patent Act believed that the courts could not recreate exceptions because “any” means any, without exception. To add redundancy to 101 and thus further protect the patent system from judicially created chaos, Congress wrote Section 282, establishing the sole defenses that can be used to challenge the validity of a patent. Section 101 is excluded as a defense, so according to black letter law, 101 cannot be a basis for a validity challenge to an issued patent. Yet, that black letter law has been ignored by the courts.

Forgetting History is Failing the Future

Congress attempted to keep the courts out of the patent eligible subject matter business. But today, Congress forgets its own history. Instead of ending the errant judicially-created exceptions, Congress attempts to perpetuate the exceptions by codify them.

It is dangerous to list any categories of invention as per se unpatentable subject matter. Doing so means the courts can interpret what these categories mean and expand ineligible subject matter as they have done so wrongly over the last two centuries. Codifying exceptions will end as it always has—with entire fields of invention wrongly excluded from patent protection, and startups in those fields unable to attract investment in the United States. These startups will go to China.

Nobody can know the future. Every category of invention transforms into new technologies. We are seeing transformation as software/hardware technologies transform into artificial intelligence (AI), machine learning, quantum computing, block chain, and many others. Medical devices transform into software/hardware technologies using AI, machine learning, and more. Transforming technologies from one category to another will never end and there is no way to project where it will go.

Once transformed, a new technology may fall into a patent ineligible category codified under the Framework. For example, AI is primarily built on three excluded categories: mathematical formulas, economic and commercial principles, and mental activities. There can be no doubt that the courts will view most AI technology as ineligible subject matter because it is built on three excluded categories. As any field transforms into new technologies, it will get caught up in one or more exceptions and the courts will find them unpatentable. This is extremely dangerous public policy.

While all excluded categories are troubling, the most disturbing (or perhaps enlightening) category is “economic and commercial principles.” This is a new category that is not currently a judicial exception under 101. But Congress is proposing to create it for some reason.

Economic and commercial principles are simply business methods and software by another name, and these are the technologies that big tech multinationals are built upon. Google uses a page ranking algorithm—a commercial principle. Facebook uses “like” and “friend” buttons—also a commercial principle. Amazon uses a shopping cart—an economic principle. But it is not just big tech that benefits from this categorical exclusion. Big banks use ATMs and trading platforms, which are economic and commercial principles.

Because the core technologies of big tech are economic or commercial principles, the only way to challenge a big tech multinational is with an economic or commercial principle protected by a presumed valid patent with an exclusive right. There is no reason to exclude economic and commercial principles except to perpetuate big tech monopolies by equipping them with tools to kill off competition from startups.

Some Perspective

Perhaps the reason for adding economic and commercial principles as a new category to be excluded from patent protection is because it will preserve big tech monopolies, and that is worth an awful lot of money.

To put into perspective how important 101 exceptions are for big tech monopolies, Google’s parent, Alphabet, alone spent over $16 million dollars in campaign contributions since 2016 and another $72 million dollars on lobbying. The whole mob, including Facebook, Amazon, Apple, Microsoft, and other big tech monopolies, have dumped hundreds of millions of dollars on Washington D.C., in large part to keep 101 exceptions alive.

I am sad to say that the 101 roundtable may not be round after all. It appears pathetically lopsided, driven by the interests of big tech and no doubt fueled by big tech’s big bucks.

The damage that will be caused to America by codifying 101 exceptions is far too great for Congress to trade for political donations. We will lose our global technological edge, our job creation engine, our economic growth, and our national security.

And for what? To perpetuate the monopolies of a few huge multinationals that have already betrayed America by limiting free speech in the public square; creepily taking personal data of all Americans and selling it; using their data and platforms to skew the results of elections; and arrogantly refusing to develop AI for our military while developing it for China’s military. Big tech monopolies have no allegiance to America and, indeed, many do not pay any U.S. taxes.

This fire is hot. Congress should not play with it so casually.

Image Source: Deposit Photos
Photo by lightsource
ID: 11549768 

The Author

Paul Morinville

Paul Morinville is Founder and former President of US Inventor, Inc., which is an inventor organization working in Washington DC and around the US to advocate for strong patent protection for inventors and startups. US Inventor has been walking the halls of Congress knocking on doors and sitting down with hundreds of offices to explain the damage suffered by inventors due to patent reforms. Paul is President of SemiComm HK, a Hong Kong company licensing patents in China, and an independent inventor with dozens of U.S. patents and pending patents in enterprise middleware.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com 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 and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 43 Comments comments.

  1. Curious April 23, 2019 3:34 pm

    While all excluded categories are troubling, the most disturbing (or perhaps enlightening) category is “economic and commercial principles.” This is a new category that is not currently a judicial exception under 101. But Congress is proposing to create it for some reason.
    Agree (but we’ve already agreed on this point before). This is a giant loophole you can drive just about anything through. One need only look at a couple Federal Circuit decisions to see how the Courts can take a pure technical invention transform it into some economic or commercial principle.

    Moreover, how does Congress propose to address the issue of determining whether a particular invention is “directed to” one of these exceptions. Until that is sorted out, nothing changes.

  2. Anon April 23, 2019 5:53 pm

    Would we need to move the Patent Office OUT OF the Commerce Department for this new category…?

  3. Pro Say April 23, 2019 9:23 pm

    A 2017 FBI report found that intellectual property theft by China costs the U.S. as much as $600,000,000,000 (600 Billion) annually.

    … and how many untold Billions has this self-inflicted, courts-making-law 101 eligibility innovation blockade cost our Country?

    If Congress codifies these dangerous proposed — or any other — eligibility exceptions, our country is sunk.

    Please Congress: Do not codify eligibility exceptions.

    Keep the door open to all current and future forms of American innovation.

    Ideally abolish section 101; or at the least, recodify it to read (with thanks to Sherry Knowles):

    “Whoever invents or applies a discovery which results in any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. Judicial exceptions to this statute are expressly prohibited, and instead, the Court is required to carry out strict statutory construction.”

  4. Night Writer April 23, 2019 9:50 pm

    Good article. I think you are right that if 101 is amended that it will be in the favor of the SV companies. I think there is going to have to be more pain (and probably one party controlling Congress and the presidency) before there 101 is amended.

    I think too that you are dead on with comments that if these are passed that the courts will just expand them nothing will change I can see “Fundamental scientific principles” exploding out to cover almost any set of claims the courts wants it to.

  5. Paul Morinville April 24, 2019 1:33 am

    Under current 101 exception, it would be an abstract idea. Now China leads in block chain. Under the proposed guidance, would it be economic activity or commercial activity?

    https://knowledge.wharton.upenn.edu/article/can-u-s-catch-chinas-blockchain-dominance/

  6. Paul Morinville April 24, 2019 2:28 am

    Anon @2. That does pose a problem. If the Commerce Dept is deemed a commercial or economic principle it would become patent ineligible. I suppose that means that the USPTO, being an agency under the Commerce Dept, would no longer be able to issue patents as it would also be patent ineligible.

  7. Concerned April 24, 2019 4:46 am

    Vague, non-existent and undefined terms are currently bad enough for 101. It seems the author may be correct that codifying the same will make things worst.

    As an inventor, I watched the Examiner write that my process was routine, conventional and well understood even though it was proven nobody has ever used my process. My only consolation is that the current law offers hope if upheld as written. A poorly amended 101 will destroy any hope I have if truth, facts or logic are no longer relevant in practice and also if those principles are destroyed by law regardless of the motivations.

    I am going to trust Congress that any amendment to 101 will be correct, honorable and in the best interest of our entire country.

  8. Night Writer April 24, 2019 6:32 am

    The other thing about this is that in Alice the Scotus tied the exceptions to the Constitution. So the justices could continue with the Abstract exception even if 101 is amended. I think the only way this won’t happen is if Congress expressly overturns the current exceptions. Probably the justices will give up the exceptions just for politically reasons.

    One must remember that the current law is nonsensical. The abstract exception was meant to cover claims like make the machine operate in the same way with fewer parts. 112 negates the need for the abstract exception. One must remember that what the Scotus did was find some way to allow the lower courts to invalidate pretty much any claim they want at the SJ stage.

    I predicted the Scotus would do this years before Bilski and predicted the outcome of Bilski after the en banc CAFC decision. The point being that it illustrates that the Scotus was looking for a way to eviscerate patent law. They wanted a case that allowed the lower courts to end litigation at the SJ stage.

    Anyway, that is the history. I think the abstract exception should be expressly overturned with a statement that it is no longer needed as 112 encompasses the situations that the abstract exception was meant to deal with.

    One must be aware of the type of statements that the justices make like Ginsburg infamous statement that patents weren’t meant for things like “organizing human behavior.” In the era of the computer, there could no statement more wrong than this.

    So I think that expecting any rational response from the justices would be a mistake. Additionally, what could happen is that the justices just wait 5 years before taking cert and then do their dirty deeds.

    In any case, the controlling text of Alice should be the Scotus tying the exceptions to the Constitution. This was a clear signal that justices believe they are working based on what is Constitutional and not statutory interpretation.

    The holding in Alice is that the claims were not Constitutionally granted. So the Court is saying that 101 needs to be reined in to keep it Constitutional.

    One must remember the rule of reason. This was used to eviscerate anti-trust. The exceptions have been used in the same way. Basically, the way to think of this is that the Scotus fabricates some case so that the lower courts can decide whatever they want.

    One exercise may be to actually list claims that one believes needed the exceptions in order not to grant the claim. I am not sure that there are actually any claims that have needed the exceptions in that 112, 102, and 103 would not have done the trick.

  9. Night Writer April 24, 2019 6:43 am

    It is odd that people are not paying more attention to the language in Alice that ties the exceptions to the Constitution. We have to remember that the language in Alice is the same language they will use to expand out any exceptions that are listed above.

    And really read Alice. Read it again. And think about what it is saying. It is saying that claims that don’t pass the test described simply “may” not “promote.” So with patents the Scotus is acting very much like legislators. They aren’t saying that any particularly claim may not promote but that we are just going to wipe out all these claims because they “may” tned not to “promote” if they fit the Alice test.

    What this should do is give everyone pause about how an amendment to 101 is handled. The Scotus could continue with their exceptions based on their Constitutional arguments–again not likely because of politics. But they have shown they can generate some argument to justify that.

    Anyway, I have decided yet how to deal with this. I don’t think this is going to actually get out of committee and be voted on and if it is it won’t be passed by the other part of Congress.

    I do want to point this out though: The AIA. There were all these people that simply did not realize what would happen. I did. And so did my entire law firm where many people moved out of patent work because of the AIA. Trade Secrets. Many people didn’t realize what this would mean to patents. I did. And many others too understand the connection and why SV wants stronger Trade Secrets.

    What this means is there are all these people that don’t understand the system and will support 101 amendments that are sold as helpful to the small inventor when they actually will not be.

  10. Khaled April 24, 2019 6:45 am

    The addition of “economic or commercial principles” will wreak havoc on all fintech companies particularly startups. Everything in the business world has some attributes relating to economic/commercial principles. So all business processes will be void of being patentable.

  11. Night Writer April 24, 2019 6:51 am

    And—again and again–the way to drive home 101 is to ask the following:

    Please list claims that you believe required 101 in order not to grant the claims. And please explain why 102/103/112 would not have been adequate.

    I have been asking this question for over 15 years since 101 started being used by the anti-patent judicial activists. (Back in 2004 I was saying that 101 would become a big deal when everyone else had dismissed it. But I talked to the architect of Benson and realized that the Scotus had lots of ways that they could restrict subject matter patentability.)

    The real question to ask is probably not could the Scotus find a new way to limit subject matter eligibility (e.g., the Constitutional argument in Alice) but how to motivate them not to.

  12. Libraty April 24, 2019 7:01 am

    Nothing will change, Sillicon Valley owns and runs America what America has today is a corporatocracy, Sen Tillis and Sen Coons work for the elites as we can see with the wording being used on for the new 101 legislation. A company like Apple is sitting on over $500 billion dollars doing nothing in its bank accounts but controlling government. A lot of Apples money was made on the backs of patent holders that never got paid. We live in a world of greed not rules with the leaders like Google Apple and Amazon bursting from all the excessive cash they have made since 2011 on the backs of patent holders. The system is broken by design and the people running it have OCD and it is not in their interest what is fair. As China builds entrepreneurship and strengthens its rules to protect patents. America has done the opposite. We all know it’s time to look to Germany and China to file for patent protection. America sold its soul to the devil by letting anti patent bill like the AIA Act/PTAB EBay/Alice/Mayo/TCHeartland/ Oil case wipe out the rules that protected a patent to become a new economic life line. Companies like Google, Apple and Amazon no longer need America they are financial juggernaut and will survive even if America does not. America needs to look after it self and all its people or it will lose to Germany and China that are building their nation for everyone to thrive. If America continues down the road of allowing special interest groups like Apple and Google full control of how laws are drafted, America is done and the inventors that built the nation up with its guarded patent rules will move to where their ideas will be protect and nurtured as Germany and China are now doing. Greed will kill it self and America is a classic text book example of how it’s done. I enjoy reading IPWatchdog it’s like the weather network telling you where the storm is going but the leaders are not paying attention to the storm they helped create as their eye and ears are barried full of Sillicon Valley money. RIP America you are expelling all the inventors that made you the envie of the world. Addiction to money is what built America and it’s what is now killing it from with like a slow moving cancer.

  13. Ross April 24, 2019 7:18 am

    I am an inventor and patent holder and I will no longer just be applying for a patent in America but China and Germany will be key place for me to file for a new patent as there is no legal protection for my patents in America anymore.

  14. Night Writer April 24, 2019 7:28 am

    @5 Concerned

    Probably I am guessing that your problems are more regarding KSR than Alice.

    KSR has made it nearly impossible to win a 103 argument against the USPTO if they maintain their position.

  15. Gates April 24, 2019 8:05 am

    What I am reading is the dismantling of the one thing that made America great and that was our patent system.

    Edison, Henry Ford, Wright Brothers would not be able to get their ideas up and running in today apocalyptic anti patent system.

    Its a shame government caters only to the elites. Silicon Valley’s special interest groups have been at war with small patent inventors and have won.

    New laws like the AIA Act-PTAB Ebay, Alice, Mayo, TC Heartland and the Oils case have decimated patent rights.

    There is no point to file for a patent in America as you can no longer find investors as the patents no longer have any value and the courts do not protect patents.

    The elites steal patents with out having to pay any type of consequence for doing so. Silicon Valley is Killing off the one thing that made them the great companies they are today.

    Dem. or Rep. can not fix the what has been done as both parties take money from Silicon Valley as they have been bought and paid for. Its time to move to China and Germany that have rules in place that will protect a inventors from patent from theft.

  16. EG April 24, 2019 8:05 am

    Knowles’ proposal for fixing 101 is still the best I’ve seen so far:

    Whoever invents or applies a discovery which results in any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. Judicial exceptions to this statute are expressly prohibited, and instead, the Court is required to carry out strict statutory construction.

    Concise, to the point, and NO EXCEPTIONS

  17. Night Writer April 24, 2019 8:19 am

    https://writtendescription.blogspot.com/2019/04/how-does-patent-eligibility-affect.html

    This is just an example of what has to be dealt with. The conclusion that IT is fine without patents but they are needed in pharma.

    Any academic paper should be assumed to have been purchased. Who knows if the survey was fair or why they got what they did. When you are dealing with people that have a purpose, they can’t be trusted. I’d bet if I spent a few hours looking at this, I could debunk their entire paper and results.

    Probably this guy was getting money from the group that is trying to bifurcate the patent system as pharma has said they can’t exist without patents.

  18. Night Writer April 24, 2019 8:45 am

    @10 EG

    I think you may be right. I think that would do it.

  19. Kirk Hartung April 24, 2019 9:09 am

    On January 8, this year, the Supreme Court ruled that courts cannot create exceptions to the Federal Arbitration Act. See Henry Schein, Inc. v. Archer & White, Inc. This rationale should also apply to the Patent Act. The judicially created exceptions to 101 are inconsistent with Schein. Since there is no basis in the statutory text for these exceptions, they are an impermissible “redesign” of the statute, just as the judicially created exceptions to the Arbitration Act were in Schein. The results should be the same: no judicial exceptions to the text of the Arbitration Act and no judicial exceptions to the text of the Patent Act.

  20. Concerned April 24, 2019 9:14 am

    Night Writer@9:

    The Examiner uses Alice as the rejection. No 102, 103 or 112 rejections.

    My process is a radically different concept from prior art. It takes intelligent people in my field several discussions to even understand it.

    Only one person got it during the first conversation and he used to be a rocket scientist in his first career, no kidding, prior to switching fields. He had 30 years in my field before his death.

  21. CP in DC April 24, 2019 9:17 am

    I agree that is would be best to abolish 101. It’s not the language, not the interpretation, it is the application of the language that is problematic. We could rewrite 101 but applying the exceptions or language is the problem. No one knows what it means, the courts don’t know, the PTAB doesn’t know, and the examiners don’t know. So it’s all guesswork.

    If (a big if) the examiners enforced 112, description and enablement, to avoid overclaiming, vague claims, claims without purpose, then we could use this statute to prevent the type of claims found in Mayo, Cleveland Clinic, etc. However, examiners don’t understand how to use 112 description to require the application to demonstrate possession of the invention. In other words, just because you write it or say it doesn’t make it so, you’ve go to show it. Then the same examiner must demand that the specification enable the full scope of the claim, hopefully with some examples (not prophetic ones). One example won’t do.

    If (again a big if) we could use 112 to curtail claim scope, then abolish 101. The problem is that we are not there. 112 rejections are difficult because they are fact specific and require time to formulate properly. So ditching 101 and leaving the void is equally unappealing.

  22. Liberty April 24, 2019 10:05 am

    GAME OVER FOR PATENT HOLDERS. BIG TECH OWN ALL THE PLAYERS AND THE RULES!! IF YOU HAVE A GOOD IDEA AND WANT IT PROTECTED GO TO GERMANY AND CHINA. AMERICA IS DEAD!!

  23. Chris Evans April 24, 2019 10:26 am

    The only way to fix it for sure it is to remove it as a defense so the Court’s will not get to interpret it. So I propose the following:

    Section 282(b)(2) of title 35 is amended to read as follows: “Invalidity of the patent or any claim in suit on any ground specified in part II as a condition for patentability other than Section 101.”

    Section 101 of title 35 is amended to read as follows:
    “(a) ELIGIBLE SUBJECT MATTER – Whoever invents or discovers any useful process, machine, manufacture, natural phenomena, law of nature, or composition of matter, or any useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
    (b) SOLE EXCEPTION TO SUBJECT MATTER ELIGIBILITY – A claimed invention is ineligible under this section only if the claimed invention as a whole, as understood by a person having ordinary skill in the art to which the claimed invention pertains, exists in nature independently of and prior to any human activity, or exists solely in the human mind and is incapable of any physical embodiment. All prior judicial exceptions to patentable subject matter are expressly overruled. This section should be interpreted broadly in favor of patentability.”
    (c) PRIVATE PROPERTY – A patent granted under this title is private property.

  24. Anon April 24, 2019 10:39 am

    The other thing about this is that in Alice the Scotus tied the exceptions to the Constitution.

    Y A W N.

    Yet another try with a worthless and (purposefully ignorant) uninformed opinion.

  25. Warren April 24, 2019 10:42 am

    All members of the Subcommittee on Intellectual Property;

    DEMOCRATIC MEMBERS
    Christopher A. Coons (DE)
    Ranking Member
    Patrick Leahy (VT)
    Dick Durbin (IL)
    Sheldon Whitehouse (RI)
    Richard Blumenthal (CT)
    Mazie Hirono (HI)
    Kamala Harris (CA)

    Thom Tillis (NC)
    Chairman
    REPUBLICAN MEMBERS
    Lindsey Graham (SC)
    Chuck Grassley (IA)
    John Cornyn (TX)
    Michael S. Lee (UT)
    Ben Sasse (NE)
    Mike Crapo (ID)
    Marsha Blackburn (TN)

    https://www.judiciary.senate.gov/about/subcommittees/subcommittee-on-intellectual-property

    All 15 members are bought and paid for by Silicon Valley Special interest Groups, have a look for yourself; https://www.opensecrets.org/

    When you can see that Silicon Valley has bought up all the Rep & Dem in the House and in the Senate Then you know their will be no fix to Sec 101.

    Patents are dead in America, all we are seeing now is political theater. If you have an invention look to Germany or China, America is not patent friendly to inventors.

  26. Anon April 24, 2019 10:48 am

    Kirk at 13:

    Thank you for reiterating one shear of the two shears of the Kavanaugh Scissors.

    Of course, the other shear that may well be put together with the Schein case comes from Justice Kavanaugh in the oral arguments of the California Franchise Tax Board v Hyatt case. There, Kavanaugh laid out a three item list to which the Court may “map” applying the holding of Schein to its own creation of a Gordian Knot and its Common Law re-writing of the statutory law that is patent law (expressly in the statute of 35 USC 101).

  27. Rich Black April 24, 2019 11:01 am

    Chris:

    Excellent suggestion.

  28. anonymous April 24, 2019 11:39 am

    This is the best I’ve seen, since it removes subject matter eligibility from the courts altogether, while still requiring the threshold to be met before issuance. It also keeps the rational portions of the Framework that are able to be defined, while allowing the Director a practical application test to overcome the few exceptions. It is a reasonable modification of the AIPLA/IPO proposal and is capable of widespread support. All of us should be writing congress: IntellectualProperty@tillis.senate.gov.

    (1) AMENDMENT.— Section 101 of title 35, United States Code is amended to read as follows–

    Ҥ 101. Patent eligible subject matter.
    “(a) Whoever invents or discovers, and claims as an invention, any useful process, machine, manufacture, composition of matter, or any useful improvement thereof, shall be entitled to a patent therefor, subject only to the conditions and requirements set forth in this title.

    “(b) Sole Exceptions to Subject Matter Eligibility. A claimed invention is ineligible under subsection (a) if and only if the claimed invention as a whole, absent a practical application thereof:
    (i) exists in nature independently of and prior to any human activity, or
    (ii) is performed solely in the human mind.

    “There are no other exceptions to patent subject matter eligibility, nor any judicial exceptions, other than those of subsection (b), nor may any other exceptions be created or applied.

    “(c) Sole Eligibility Standard. The eligibility of a claimed invention under subsections (a) and (b) shall be determined without regard to:
    (i) the requirements or conditions of sections 102, 103, and 112 of this title;
    (ii) the manner in which the claimed invention was made or discovered; or
    (iii) whether the claimed invention includes an inventive concept.

    “(d) The Office shall examine claims of a patent application for compliance with subsections (a), (b) and (c), making a determination of presence of patent eligible subject matter. Once a patent issues, the Office has determined the claims comply with subsections (a), (b) and (c), and such determination shall not be challenged in any court for failure to comply with subsections (a), (b) and (c).

    “(e) Once a patent has issued, the Office’s determination regarding patent eligible subject matter in issued claims shall be final and shall not be cause to invalidate an issued patent, nor shall lack of patent eligible subject matter be raised as a defense to an allegation of patent infringement.

    (2) AMENDMENT.— Section 282(b)(2) of title 35, United States Code is amended to read as follows–

    “(2) Invalidity of the patent or any claim in suit on any ground specified in part II as a condition for patentability under Section 102 and Section 103, excluding patent subject matter eligibility under Section 101.”

  29. Pro Say April 24, 2019 1:46 pm

    Though certainty is guaranteed for all time only with the abolishment of 101; Chris @ 17’s approach would also do the trick.

  30. B April 24, 2019 3:40 pm

    Paul – you’re so spot-on with this as you always are.

    I had no idea the retards in Congress had gone off the innovation track

  31. Night Writer April 24, 2019 4:40 pm

    @20 Warren.

    Yup. That is why I have been saying it is a pipe dream to think that there is going to be legislation that strengthens patents.

  32. Anon April 24, 2019 5:15 pm

    Night Writer has been in a bit of a tiff lately, so I thought this link may “cheer him up.”

    https://www.ipwatchdog.com/2017/10/28/patentability-drafting-enablement-requirement/id=89721/

    I stumbled upon this while searching for a different legal topic, but the “wounds” of Alice must have been very fresh as reflected in his comments.

  33. Curious April 24, 2019 5:59 pm

    Yet another try with a worthless and (purposefully ignorant) uninformed opinion.
    He bitterly complains when we have attacked that position, and then decides to step right back into it? Unbelievable. If he doesn’t want his position attacked, then he needs to keep it to himself.

    Let me repeat something I wrote very recently (for the first time), which addresses his “Scotus tied the exceptions to the Constitution” argument. This is what the Constitution actually states:
    [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

    It is the securing of the exclusive rights that promotes the progress of science and useful arts. Consequently, if SCOTUS is tying the exceptions to the Constitution, the Supreme Court has misread what the Constitution actually stated. For the Constitution to support what the Supreme Court’s statement, it would have to be written as such:
    The Congress shall have the power … to secure for limited times to authors and inventors the exclusive right to those respective writings and discoveries that promote the progress of science and useful arts.

    With this rewriting, the promotion of the progress of science and useful arts is a condition precedent for securing of the exclusive rights. However, that is not how this clause is written. We know this isn’t a requirement because while we consider this the Patent Clause it is also known as the Patent and Copyright Clause and there is no requirement that the writings of authors promote the progress of science and the useful arts. Thus, the “promote the progress of science and useful arts” is not a condition precedent for securing of the exclusive rights — either of writings or discoveries. Rather, the “promote the progress of science and useful arts” is the stated justification for the granting of the power to Congress. It is not a requirement of any individual grant.

    This is what happens when law clerks try to get tricky and don’t think through their legal justification (in order to give their boss cover for the decision to be rendered — regardless of what what the Constitution or statute says). In other words, the Supreme Court justice determines how he/she is going to come out and tasks the clerk to justify it.

    Moreover, as I stated earlier, in Bilski, SCOTUS explicitly tied the exceptions to the statute:
    This Court’s precedents provide three specific exceptions to §101’s broad principles: “laws of nature, physical phenomena, and abstract ideas.” Id., at 309. While not required by the statutory text, these exceptions are consistent with the notion that a patentable process must be “new and useful.”
    Of course, the Court is wrong here too as the exceptions have nothing to do with the “new and useful” since the Courts have subsequently determined that newness and utility still doesn’t save an invention from determined to be directed to one of the exceptions.

  34. Night Writer April 24, 2019 6:23 pm

    @27 Anon

    And all my anger against the injustice amounts to nothing. I was against the billions and billions of dollars the tech giants have to shape the law.

  35. Anon April 24, 2019 11:45 pm

    Night Writer,

    You rather missed the point.

    Understanding law and making cogent legal arguments is not dependent on either rage or large sums of money.

    While certainly passion (including rage) and lots of money can be helpful in shaping the law, critically thought out and well informed words CAN prevail over both.

    Our society literally depends upon that.

  36. Rilo Hewer April 25, 2019 1:46 am

    Can someone explain why investment would necessarily leave the US and go to China if the current status of 101 is maintained? It seems that even if startups and investment would go to China, you would still face the hurdle of not being able to obtain a patent in the US. The same impediment to monetizing IP still exists if the US is not granting these patents. While you might be able to get a patent in China if you are a Chinese based startup, how is this different from a US startup who has developed something in the US getting a patent in China? The same IP protections are obtained whether the technology is developed in the US or China.

  37. Night Writer April 25, 2019 8:41 am

    @28, 30 Curious and Anon

    Do you two understand the difference between prescriptive and descriptive?

    I understand fully –and recognized the first time I read Alice—that the Scotus was way out of bounds. That Alice was essentially legislation as it was asserting that this huge class of patents were invalid because they were unconstitutionally granted.

    Do you guys understand that I merely understand what their position is and do not endorse it?

    Curious: you tell me that the Scotus is not a fact finder. The people that understand that the Scotus is going to do pretty much what they want to do (there are boundaries, but that is another topic) knew they were going to be a fact finder in Oil States. This Alice stuff is the same type of arguments.

    Anon: You went off on your tizzy before Bowman v. Monsanto. I tried to understand how the Scotus thinks and correctly predicted the outcome. You thought that Kagen might join an opinion that IPRs were unconstitutional. I said there was zero chance of that because I understand her positions on the administrative state.

    Etc. Etc. Etc. Etc.

    Are you two really incapable of keeping both thoughts in your head? My thinking goes like this. Alice is outrageous. The Scotus is way out of bounds here. That is my opinion of the case. I also am able to keep in my head how the justices think as expressed in Alice. I used this to predict their behavior.

    What you two do is when I state what I think the justices think and what they may do, then you two go and tell me what you think the justices should do.

    Can you two try to mature a bit?

  38. Liberty April 25, 2019 9:05 am

    @warren

    I think even the guys at IPWatchdog can see the writing is on the wall, they say greed will kill it self. Well America is a great example of just that, when you no longer look to strengthen the laws to help everyone prosper, but only cater to the people donating to your campaign and introducing laws that undermine the rules of law and righteousness and building a balanced playing field. It’s game over for the small inventor. Capitalism and the rule of law is dead and a new Corporatocracy oligarchs control everything. When are people going to wake up and see the system is rigid and its only getting worse.

  39. Anon April 25, 2019 9:16 am

    Night Writer,

    It is YOUR lack of maturity on display.

    You seem to think that this “but I am descriptive/I predict” is somehow on point to the fact that you post in a manner that is neither and that you cannot take the fact that your presently stated “opinion” ignores counterpoints as to why that opinion is off the mark.

    It is YOU that needs to understand the difference between descriptive and prescriptive — AND what the actual larger is that is at stake in discussing BOTH what the Court has done and what the Court should do.

    Maybe that ethical duty I mention should give you a clue. That is, if you can get out of your own way.

  40. Curious April 25, 2019 9:42 am

    Curious: you tell me that the Scotus is not a fact finder.
    No … I say that SCOTUS should not be a fact finder for reasons that someone already wrote a law review article on. There is a difference between interpreting the law (i.e., judicial review) and finding facts. I recognize that SCOTUS finds facts — they do it all of the time. However, I’m not conceding that what they are doing is proper.

    Are you two really incapable of keeping both thoughts in your head?
    Again with the insults. Are you incapable of having a discussion about the law without getting riled up and resorting to insults time and time again?

    Can you two try to mature a bit?
    ditto

    Anon: You went off on your tizzy
    ditto

    I also am able to keep in my head how the justices think as expressed in Alice. I used this to predict their behavior.
    That is no great secret. The liberal-wing is anti-patent. Scalia, when he was alive, was anti-patent (the most virulent of the conservative wing). Thomas is generally anti-patent. Alito and Roberts are fence sitters. Gorsuch appears to have a pro-patent best. Additionally, as I written long before, judges tend to have an anti-monopoly bent, and to the extent that they compare patents to monopolies, they are going to come out against patents.

    My thinking goes like this. Alice is outrageous. The Scotus is way out of bounds here.
    That’s nice, but that is not how your comments read. Rather, your comments read as a defense of SCOTUS’s pronouncements — i.e., they are justified. I cannot speak for Anon, but that is why your comments get my attention — not because that you’ve identified some cockemamy justification for what the Supreme Court wrote. Rather, it is because your comments read like a defense of what the Supreme Court wrote.

  41. Night Writer April 25, 2019 12:09 pm

    @32 & 33 Anon and Curious

    Have the last word. (And I hope it is the last word from you two.)

  42. Anon April 25, 2019 12:38 pm

    Night Writer,

    Yet again, you miss the point.

    This is NOT about “last word,” as I have entreated you (how many times now???) TO ENGAGE on the merits.

    It should be abundantly clear that you earn may disdain because you are not engaging on the merits.

    Curious is correct: your posts are coming out as a defense of the Court. Did you not bother to read my post about ethical duty? Or are you too concerned with nursing some self-pity feeling that you are being picked on ‘so unfairly’….?

    Get out of your own way.