True Respect for Textuality Requires Patent Eligibility Reform

I recently had the opportunity to speak about patent eligibility at a webinar hosted by the Federalist Society. The discussion was heated. I joined Sherry Knowles, Matt Dowd And Professor Josh Sarnoff Professor Sarnoff largely defends the current patent eligibility regime, or at least argues that things are not as bad as I and others with similar views claim.

As I said during the webinar, I consider Professor Sarnoff a friend. He is someone who is always willing to have a meaningful conversation, regardless of whether he agrees with you or thinks you are wrong. These kinds of discussions don’t happen enough, so I congratulate him and the Federalist Society for having a conversation where opposing views are discussed. Having said that, I don’t surprisingly think that Professor Sarnoff is deeply mistaken.

You Can’t Become a Textlist by Ignoring the Text

Professor Sarnoff expressed his respect for textuality throughout his presentation. I am similarly in favor of textuality, but such an approach to interpreting a law actually requires honoring and respecting the literal, clear and unambiguous terms of the text. Extolling textualism and then ignoring the text is legal activism, not textualism; This is exactly what happens every time patent eligibility is debated and decided.

Professor Sarnoff began the webinar by tracing the development of patent eligibility law to England several hundred years ago. While I’m a history buff and his history lesson was interesting, there’s no need to go that far back in time. Anything before 1952 is completely irrelevant, as the 1952 Patent Act codified all patent law in the United States, adopting much of the case law but also deviating from it in significant ways. And thanks to the legal history of the Patent Act of 1952, we know that anything created by man must be patent-eligible.

When arriving at and interpreting modern jurisprudence 35USC101Professor Sarnoff argued that it is wrong to refer to judicial exceptions to patentability as exceptions because they are not exceptions but merely judicial interpretations of the law. This is of course wrong and there is no room to even seriously discuss this particular point.

First, the Supreme Court’s bans on patenting claims for abstract ideas, laws of nature, or natural phenomena are literal departures from the plain, ordinary, and plain meaning of the statute and the language of the Constitution. And nothing in the law or the Constitution requires or authorizes the courts to impose requirements not found in the law or the Constitution.

Second, prohibitions against patenting abstract ideas, laws of nature, and natural phenomena have always been understood as legal exceptions to patentability because the cases themselves characterize them in precisely this way. In fact, even the Supreme Court has repeatedly referred to and even pointed to the “§101 exception.” Alice / CLS Bank The court’s “101. He stated that “he has interpreted the article and its premises in the light of this exception for more than 150 years.”

Survive Henry Schein

So why would Professor Sarnoff engage in such a clearly losing semantic battle over whether Supreme Court-established prohibitions on patentability not enshrined in statute are exceptions or merely interpretations? Because inside Henry Schein, Inc. – Archer & White Sales, Inc.. The Supreme Court ruled that courts, including the Supreme Court itself, are prohibited from adding their own exceptions to legal texts.

Inside Henry ScheinThe Supreme Court considered a matter related to the Federal Arbitration Act. It has long been the law that parties to a contract dispute may elect to have the dispute resolved by an arbitrator rather than a court. Similarly, it has long been the law that a contract may delegate the threshold question of arbitrability to the arbitrator. However, some federal courts have created what is known as the “wholly without merit” exception, which allows them to decide the issue of arbitrability regardless of whether the parties agree that the award should be decided by an arbitrator. To this the Supreme Court said: “The short answer is that the Act does not contain a ‘wholly unfounded’ exception and we cannot transpose our own exceptions into the statutory text.”

So, in the light Henry ScheinIt is understandable why things that have been universally defined as exceptions to the law for over 150 years have been misdefined; because if these are exceptions, as the Supreme Court and the Federal Circuit have repeatedly said, they will not survive Henry Schein.

Discoveries Are Favorable – Period

Another point Professor Sarnoff made concerned the fact that not all discoveries are patent-eligible; This, unfortunately, will be an accurate legal statement if the consideration of the issue is frozen based on the decision of the Supreme Court. AMP and Numerousstated: “Groundbreaking, innovative, or even ingenious discovery alone does not qualify for a §101 investigation.” The problem is that the law says otherwise; in fact, the law literally and explicitly says that discoveries are patentable.

Significantly, 35 USC 101 specifically uses the word “discovery” and says in the relevant section: “Whoever invents or discovers…may obtain a patent therefor…” Similarly, the Constitution states in Article I, Section 8, Clause, “Discoveries uses the word 8, to describe what Congress has the authority to protect. So discoveries absolutely have to be patent-eligible, period.

Professor Sarnoff is trying to change the term “discovery” so that it is an invention and not just a pure scientific discovery otherwise. But again, this characterization finds no support in the law; In fact, when you read the clear terms of the law literally, the opposite meaning becomes clear.

As Professor Sarnoff suggests, the term discovery cannot possibly be synonymous with the term invention because in law “whoever invents OR discovers” (emphasis added) is entitled to a patent if the invention is new and useful. Based on this clear language of the law, the word “invent” cannot be synonymous with the word “discover”, otherwise the use of the alternative word “or” would mean “and”, which is the opposite and almost unacceptable. a way of interpreting a law. You cannot read legal terms to mean the exact opposite of the plain and ordinary meaning of those terms.

Besides, 35 USC 100(a) He specifically defines the term “invention” to mean both “invention and discovery.” The importance of this cannot be overstated. Obviously, the word “invention” should mean “invention,” but the Convention specifically designed to include “discovery” whenever the word “invention” is used. Once again, the use of the alternative term—“or”—makes clear the statute’s intent to include recognized inventions as patentable inventions.

If I Can Throw It At You, It’s Not Abstract

Patent eligibility has become untenable, and whatever your opinion of what is or should be patent eligible, that untenability is undeniable. And we are in this absurd position in large part because both the Supreme Court and the Federal Circuit have expressly refused to define what an abstract idea is; This is nothing more than a deliberate attempt to keep the industry in the dark in favor of “I’ll do it.” An “I know it when I see it” approach to the most fundamental threshold question of patentability. Failure to define what constitutes an abstract idea is how a camera was found to be patent ineligible by the Federal Circuit. Yu/Appleand how the Patent Trial and Appeal Board was able to convince him of this. MRI machine is also abstract. Clearly neither the camera nor the MRI machine are abstract. In fact, it would be well if the law contained what universal common sense should be; That is to say, if the invention were to be thrown at your head and leave a mark upon impact, it could not be considered abstract under any reasonable definition.

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Author: Irina_drozd
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