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The premise of this article is exactly 100% wrong. Congress has the constitutional power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Congress has used this power to create a patent system. The early U.S. patent system was plagued by an activist Supreme Court that consistently deemed itself the arbiter of what was "inventive," and what was not. The Supreme Court developed doctrines that described certain categories as not inventive, including "abstract ideas," "laws of nature," and"natural phenomena" The Supreme Court rarely every found any invention to be inventive enough to deserve a patent. This caused patents to be regarded as a fools errand, and removed much of the incentive to inventors.

In 1952, the Congress had had enough, and replaced the arbitrary 'inventive' standard with the modern 1952 Patent Act, which provided specific requirements for what was patentable, and what was not. "Inventiveness," "Abstract Ideas," "Laws of Nature," and "Natural Phenomena" were deliberately excluded from the act.

The Supreme Court could not be broken of its addiction to these "judicial exceptions" to the patent act, and gradually reintroduced the concepts in case law. Alice v. CLS Bank was just the final straw that broke the camel's back, and has caused a huge s#!tstorm in computing and medical patents. This is despite the Supreme Court's express recognition that it has no authority to make up judicial exceptions to statutes.

Alice, and all the Judicial Exceptions cases that led up to it, are bad law, and I applaud Senators Tills and Coons for actually working to do something about it. Their proposed draft amendment to Section 101 of the Patent Act is good, and would fix the many problems caused by the Supreme Court. They also added proposed amendments to Sections 100 and 112 that are not good, and are in fact downright bad. I suspect that the Section 100 and 112 amendments were last minute additions proposed by lobbyists. I expect that they will be removed or significantly re-worked in the next revision.

Further, Alice v. CLS Bank is one of Justice Thomas' worst opinions. I think he tried mightily to make all the Supreme Court's bad precedent hold together, and failed because it is impossible to do so.

It wasn't his fault.

Finally, Alice v. CLS Bank reached the right conclusion, but for all the wrong legal reasons. The patent at issue in the case should have been invalidated, but for other reasons - it would never have stood up to the proper analysis under Section 103 of the Patent Act.

But, in patent litigation, you cannot make a determination based on Section 103 until after the patent claims have been looked at carefully to understand their meaning to an ordinary skilled practitioner in that field. The desire to twist Section 101 to invalidate patents is because there is no procedural requirement that a court first go through the effort of understanding the meaning of the claims before rendering a decision.

“computing and medical patents”

I was a computer programmer.

I solved problems in exchange for a salary.

I was a hired gun. Show me the problem and give me enough cash and time and the problem would get solved.

I went to college with pre-meds. Doctors are smart people.