Will Dobbs Cure the Plague of Patent Eligibility Nonsense?
“The Dobbs decision demonstrates that, in the absence of any language in the Constitution, the courts have no authority to rewrite statutory language except under extraordinary circumstances.”
For anyone surprised about the Supreme Court refusing certiorari in the America Axle v. Neapco case after the Department of Justice (DOJ) (aided by the Solicitor’s Office of the U.S. Patent and Trademark Office [USPTO]) submitted its brief for the Supreme Court’s review, the question arises: why would anyone be surprised? The brief at issue is garbage, and one wonders what exactly its purpose was.
To save time for concerned readers, the DOJ’s brief may be summarized as follows: (1) a bunch of decisions were made on patent eligibility by the Supreme Court over the last 50 years; (2) the Federal Circuit is divided on the exceptions to patent eligibility; and (3) the Solicitor would like clarification as to what is abstract and what is an inventive concept, but not if it involves evidence. That is, the DOJ and PTO now demand more subjective theory on Alice-Mayo while deliberately eschewing any objective basis for the test despite the fact that the claims in Bilski, Alice, and Mayo were considered abstract based on evidence in the record.
What this self-serving drivel stands for is: “we best and brightest GS-15s in the Executive love our government-authorized capricious vetoes over patents, and we want to pretend as if we’re actually concerned about the capricious nature of Alice-Mayo, but don’t speak about evidence because evidence has an objective quality that interferes with our capricious vetoes.”
‘Gump’-Created Drivel
In sum, the DOJ’s Brief is a prime example of the sort of self-serving nonsense that only a collection of useless government employees, hereinafter referred to as a “gump,” can produce after an entire year of closely reviewing the state of patent eligibility. The term “gump” of useless government employees is used given that John Kennedy Toole had long ago called dibs on “a confederacy of dunces.” Yes, a gump of GS-15s from the prestigious DOJ and the USPTO’s Solicitor’s Office teamed up to produce 20+ pages of nothing more than a totally uninformative outline of the state of patent eligibility with absolutely no helpful analysis and while skillfully avoiding actual issues that might shed light on the confusion caused by the last 50 years of Supreme Court tinkering with patent eligibility. The brief is all show designed to give the false impression that the DOJ and USPTO want to correct a problem that has long needed correction.
What is missing from the brief that might be helpful? How about some discussion of the Supreme Court’s constitutional authority to rewrite the patent law from the bench? How about some request for specific definitions? How about an explanation as to why evidence isn’t relevant to determine what is “well-known, routine, and conventional?” How about a discussion about what level of inventiveness satisfies the “inventive concept” standard or why the whole “significantly more” analysis sounds a lot like an obviousness analysis under 35 U.S.C. § 103.
Rader Called It
The second greatest problem with Alice-Mayo is a complete lack of objective standards. “Abstract” is whatever a government employee declares it is. Further, no limiting principles have ever been applied to “significantly more,” and the term “inventive concept” was garbage the moment Stevens first pulled the term out of thin air in his 1978 Flook decision. Judge Rader’s dissenting opinion in Bilski en banc foreshadowed all the problems in Alice-Mayo with the idiotic list of capricious prerequisites that courts wanted to tack on to patent eligibility. Now the question arises; what could be more problematic than a completely capricious test for patent eligibility? Answer: the constitutional authority of the courts to inflict said completely capricious test for patent eligibility on the public. Judge Rader saw this clearly. That is, the biggest problem with Alice-Mayo, which Judge Rader’s dissenting opinion in Bilski en banc also raised was: where do the courts get the authority to violate statutory law? “The Act has not empowered the courts to impose limitations on patent eligible subject matter beyond the broad and ordinary meaning of the terms process, machine, manufacture, and composition of matter,” Rader wrote.
Dobbs Should End the Debate
The only group of people who still might believe that their policy preferences in the patent law take precedent over Constitutional separation of powers is the Supreme Court. However, in light of the majority decision in Dobbs v. Jackson Women’s Health, one wonders whether the Supreme Court will finally admit to this lack of authority. The Dobbs decision demonstrates that, in the absence of any language in the Constitution, the courts have no authority to rewrite statutory language except under extraordinary circumstances. The two primary considerations the Supreme Court took in Dobbs were two-fold and included: (1) the quality of reasoning of the decision being overturned, and (2) the workability of the decision being overturned.
1) The quality of the reasoning. The Supreme Court declared, “[u]nder our precedents, the quality of the reasoning in a prior case has an important bearing on whether it should be reconsidered.” Slip. Op. at p. 45. This applies to every court decision limiting patent eligibility as the Supreme Court has never asserted constitutional authority to violate legislative prerogative. Benson and it’s progeny are mere policy preferences, not decisions based on constitutional authority. The same applies to Flook, Bilski, Alice, and Mayo. All these cases stand on exceptionally weak constitutional grounds.
There is no language in the Constitution to justify the courts’ judicial tinkering in Section 101. There is nothing under the doctrine of substantial due process to justify the courts’ tinkering; nothing in the first eight Amendments, and no assertion that the Patent Law as written violates some fundamental right that is “objectively, deeply rooted in this Nation’s history and tradition.” See Slip. Op. at p. 75. The holdings of Benson, Flook, Bilski, etc. are not “implicit in the concept of ordered liberty.” Id.
2) Workability. “[A]nother important consideration in deciding whether a precedent should be overruled is whether the rule it imposes is workable—that is, whether it can be understood and applied in a consistent and predictable manner.” Slip Op. at p. 56. This applies to Alice-Mayo. “Abstract” is whatever a judge says it is. “Significantly more” and “inventive concept” have no meaning. Alice-Mayo is unworkable as it is an exercise in capriciousness.
Takeaway
There is no constitutional authority to rewrite Section 101 to exempt computer-based claims or any other claim that passes every statutory requirement under the patent law. Further, Alice-Mayo is unworkable and no fabricated claim of substantive due process can justify the real violations of procedural due process caused by Alice-Mayo.
Image Source: Deposit Photos
Author: tashatuvango
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Burman York (Bud) Mathis III
Burman York (Bud) Mathis III is a sole-practitioner in the Washington D.C. area with experience in patent drafting and prosecution, opinion writing, due diligence, litigation and appellate work. Mr. Mathis […see more]
