By David Hricik, Mercer Law School
Over on Gene Quinn’s IPwatchdog page, former chief judge Rader has written an article about the Supreme Court’s 101 jurisprudence. I clerked for then chief-judge Rader in 2012-13 (I think I have been the clerk’s oldest clerk, then 51 years old). Alice was issued by the Federal Circuit during my tenure and of course I can’t talk about what I saw, but I can say that the article aligns with my own thoughts about 101: Congress in 1946 (and then 1952) did its level best to get rid of “eligibility” as condition of patentability. The fact that Section 101 is not a “condition of patentability” lends great support to that, as does the legislative history of the 1946 and 1952 act.
I blogged about the textual arguments 11 years ago (sigh) and you can find those comments here.
Tilting at wind mills but maybe this strongly textualist court will realize it has run astray from the text… And maybe I’ll win the Powerball…