High Court Is Lost In The Woods With The Laws Of Nature

Law360, New York (May 18, 2016, 12:18 PM EDT) -- Hikers don't usually head into nature without a map or a plan. They know that sometimes the trail disappears or they take a wrong turn and end up lost. The U.S. Supreme Court has gotten lost when it comes to its interpretation of patent eligibility under 35 USC §101 in regards to the laws of nature. Fortunately there is a map available for them to use. It is called the canons of statutory construction. The current framework for determining patentability is determined under the two-step process described in Alice Corp Pty. Ltd. v. CLS Bank International.[1] Step one involves the determination of whether or not the claims at issue are directed to one of the patent-ineligible concepts (e.g. laws of nature, natural phenomena, and abstract ideas). If the answer is yes, then step two asks whether or not the claims add something more thereby imparting patentability. This framework should be discarded based on both the Constitution and the Supreme Court's own adoption of the canons of statutory construction....

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