Today, Gene Quinn posted an article: Iancu: People have a right to know what is patent eligible that should encourage those dealing with the current law of patent eligibility under 35 U.S.C. 101.
"Director Iancu would go through the list of things we collectively understand are not patent eligible, such as isolated DNA, gravity and the like.
'Let’s be transparent,' Iancu said. 'Let’s make a list.'
'What is it that we want to exclude from patenting, people should know up front,' Iancu said forcefully.
'We must be careful to not overread the Supreme Court’s exclusions,' Iancu said before quoting the Supreme Court recognizing that their tests could if applied expansively swallow all of patent law.
'Why not simplify,' Iancu asked."
I like where our USPTO Director Iancu is going, but think if and when Congress, the courts, and the USPTO put together an "exclusion list" we would then hear much disputing on whether a given invention is "on" or "off" the list.
Congress and the Supreme Court need to reconsider whether or not 35 U.S.C. 101 should have vaguely defined judge made exclusions to patent eligibility. It does not track the language of the statute and look how much uncertainty it has generated. I don't think everything man thinks up should get patent protection. However, we can exclude what shouldn't receive patent protection by comparing a claimed invention to prior technology, and by applying the substantial body of case law set forth in 35 U.S.C. 102 and 35 U.S.C. 103. Otherwise, we may continue to watch the courts stretch the language of 35 U.S.C. 101 under Alice/Mayo test to encompass novelty under 35 U.SC. 102 and non-obviousness under 35 U.S.C. 103.
Copyright © 2018 Robert Moll. All rights reserved.
