Unlike the laws of other nations that include broad exclusions to eligible subject
matter, such as European restrictions on software and other method patents, see
European Patent Convention of 1973, Art. 52(2)(c) and (3), and prohibitions against
patents deemed contrary to the public morality, see id. at Art. 53(a), U.S. law and policy
have embraced advances without regard to their subject matter. That promise of
protection, in turn, fuels the research that, at least for now, makes this nation the world’s
innovation leader.
II
With all of its legal sophistry, the court’s new test for eligibility today does not
answer the most fundamental question of all: why would the expansive language of
section 101 preclude protection of innovation simply because it is not transformational
or properly linked to a machine (whatever that means)? Stated even more simply, why
should some categories of invention deserve no protection?
This court, which reads the fine print of Supreme Court decisions from the
Industrial Age with admirable precision, misses the real import of those decisions. The
Supreme Court has answered the fundamental question above many times. The
Supreme Court has counseled that the only limits on eligibility are inventions that
embrace natural laws, natural phenomena, and abstract ideas. See, e.g., Diehr, 450
U.S. at 185 (“This Court has undoubtedly recognized limits to § 101 and every discovery
is not embraced within the statutory terms. Excluded from such patent protection are
laws of nature, natural phenomena, and abstract ideas.”). In Diehr, the Supreme
Court’s last pronouncement on eligibility for “processes,” the Court said directly that its
only exclusions from the statutory language are these three common law exclusions:
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