§ 101 can be fixed or applied properly; the standard inventiveness is not consonant with the § 103. It is tautological that a process or product that is unobvious under § 103, cannot exist in nature or be obvious over what exists in nature because it would have been so-rejected .
In applying the Mayo/Alice test, in looking for something "inventive," the courts are applying an unreasonable standard for inventiveness. In applying the test, courts are looking at the individual elements, and determining if each is known or standard. Virtually all processes and products are composed of known standard elements. In assessing inventiveness, the courts and the Patent Office should be looking at the combination of elements, not each individually, as in a § 103 analysis. How a process or product can be unobvious under § 103 and yet be patent ineligible?
Denise kettelbergerApril 13th, 2016, 11:20AM
Thank you David for saying what we all are thinking!
Lilly's brief authored by Bob Armitage and Jim Kelly also provides a robust discussion of this important issue.
§ 101 can be fixed or applied properly; the standard inventiveness is not consonant with the § 103. It is tautological that a process or product that is unobvious under § 103, cannot exist in nature or be obvious over what exists in nature because it would have been so-rejected .
In applying the Mayo/Alice test, in looking for something "inventive," the courts are applying an unreasonable standard for inventiveness. In applying the test, courts are looking at the individual elements, and determining if each is known or standard. Virtually all processes and products are composed of known standard elements. In assessing inventiveness, the courts and the Patent Office should be looking at the combination of elements, not each individually, as in a § 103 analysis. How a process or product can be unobvious under § 103 and yet be patent ineligible?