A Plea for Clarity and a New Approach on Section 101 in 2020

The lack of clarity by the U.S. Supreme Court in its landmark patent case of Alice Corp. v. CLS Bank International, 573 U.S. 208; 134 S. Ct. 2347 (2014) and the subsequent failure of the Federal Circuit to achieve consistency and predictability in Section 101 jurisprudence, has resulted in the destruction of thousands of patents, especially in the fields of information technology, software and life sciences. Was it really the Supreme Court’s intention in Alice to invalidate so many good patents based on so-called judicial exceptions to Section101 such as the “abstract idea” test, which no court has been able to adequately define? How can the U.S. patent system be trusted when criteria for patent eligibility can no longer be clearly defined and courts can invalidate patents based on judicial discretion, without affording the patent owner due process such as presenting scientific and technical evidence from the viewpoint of a person of skill in the art? Due to the Section 101 problems created by the courts, owning a U.S. patent in the today is no longer an asset but a liability. Inventors are increasingly looking to other countries like China to provide protections they can no longer find in the United States—or are avoiding the patent system altogether. Where will the United States be in 10 years if innovation continues to be stifled and innovators increasingly resort to trade secrets?

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