How Valid are Judicial Exceptions in Subject Matter Eligibility in U.S. Patent Law?

Abstract

Much of the confusion and consequent opportunistic patent litigation that arises today is due to the three judicially created exceptions to the U.S. Patent Act’s broad patent-eligibility principles: 'laws of nature, natural phenomena, and abstract ideas' whose scope and limitations remain unclear and confusingly dealt with in litigation. In this paper we revisit the exceptions in light of our modern understanding of physics, mathematics, algorithms, computations, life sciences, and information. We conclude that a rigid adherence to the exceptions to maintain stare decisis in jurisprudence is irrational and their role in patent grant must be reconsidered. What the judicial system suffers from is a lack of deep understanding of science, technology, engineering, and mathematics (STEM) and the dramatic changes they have undergone post-1900, because of which the patent system is wading in a quagmire of its own making. In particular, the judiciary errs in believing that the laws of nature are known to mankind and therefore they are "part of the storehouse of knowledge of all men" and "free to all men and reserved exclusively to none." In fact, no human knows what the real laws of nature are and it appears they will never know; physicists "know" them only as conjectures which are open to refutation.