In my previous article, we discussed the balances presently being made in the implementation of the American Invents Act (AIA). As stated in that article, the nature of the bargain struck often depends on your perspective.
Last month, we saw the Supreme Court genuinely struggle with finding the right balance as to the patent eligibility of medical methods relative to the laws of nature in Mayo Collaborative Services v. Prometheus Laboratories, Inc. In attempting to fashion a solution that would remain technologically neutral, the court recognized that the “practical effects” of such rules “may differ from one field to another.”
Still, setting aside whether Congress has already acted on this issue, a further question arises: Would future Congressional action necessarily resolve the issue any better than Mayo did? The answer unfortunately may be an unqualified maybe.
To begin, laws regarding patent eligibility may well be easier to articulate than apply, such that any clarity obtained by a statement that medical methods (or business methods, or software) are or are not patent eligible may be illusory.