By David Hricik
I’ve written on this blog my argument — I think, observation — that the text of the Patent Act does not authorize invalidity, or patentability, to be based upon Section 101. (Here is one of them.) Why rant again?
First, Dennis on the main page posted here the USPTO’s new guidelines on eligibility.
Second, today at the AIPLA mid-winter meeting, Bob Armitage spoke passionately about how these guidelines are nonsensical and that we will never resolve the 101 problem because it is leading us down a path of nonsense talk. (Is a non-mathematical concept not abstract? What is a “method of organizing human activity?”). The Federal Circuit in one of the Alice opinions quoted Judge Rich who said in 1946 Congress got rid of this nonsense — of what is “inventiveness” and so on — but here we are, talking nonsense.
So, this post. Here is my suggestion: someone should assert the USPTO lacks rule making power to adopt these regulations (or guidelines) because 101 is not a condition of patentability. Maybe the USPTO will reject the argument (I bet they will but a textualist would not), and maybe the CAFC will reject the argument (ditto), and more likely than not the Supreme Court would, too (but, I hedge my bets because several justices are textualists and the Court has actually never analyzed the statutory text). You could, if you made this argument, end up showing the Court what the USPTO and CAFC know, which is that 112 and 103 are the authorized and regulated ways to police broad patents, and 101 is not.
Maybe you can help us stop talking nonsense.