The Supreme Court has, however said there are three judicial exceptions to what is otherwise statutorily patent eligible – laws of nature, physical phenomena, and abstract ideas. The abstract idea exception is what applies to computer-implemented methods (i.e., software).
The Supreme Court has steadfastly refused to define the term ‘abstract idea’ even though it is essential to their extra-judicial test for patent eligibility. The Federal Circuit, seemingly uninterested in bringing any certainty to patent laws or Supreme Court pontifications, has said that if the Supreme Court does not need to labor to define the term ‘abstract idea’ then neither do they. See Enfish v. Microsoft.


Early, the Supreme Court said in Alice v. CLS Bank that they did not need to define the term ‘abstract idea’ because they are wholly incapable of coming up with a suitable definition, and they seem to understand that fact. A reasonable, thoughtful, professional bunch would have realized that their unwillingness to define the term was a sign. They didn’t need to labor to define it, as they put it, because they are the Supreme Court. he Federal Circuit would have none of it. If the Supreme Court doesn’t need to define the term ‘abstract idea’ then why should the Federal Circuit? After all, the Federal Circuit judges are nearly Supreme Court judges, right? They are sorta like Supreme Court judges except for two to four patent cases a year. So if the Supreme Court doesn’t have to labor to define the term ‘abstract idea’ then certainly a nearly Supreme Court for patents can’t be expected to define this critical term just so the entire industry can understand the test that is applied against them and their already issued property rights on a daily basis.


It seems that the industry and public are caught between bickering parents in a patent version of divorce. Rather than engage in any rational thought the two Courts that hold America’s patent fate seem paralyzed by suspicion, distrust and the belief that it is up to the other one to fix the mess. The Federal Circuit has said as much on several occasions, with Federal Circuit judges saying that further guidance needs to come from the Supreme Court, not the Federal Circuit. But that’s not how the system works. The Supreme Court takes a couple cases a year and it is up to the Federal Circuit to make sense of the very broad brushes painted with by a bunch of generalist technophobic judges who never have and never will understand patent law. The role of the Federal Circuit is to take irreconcilably inconsistent precedents of the Supreme Court and make some sense of it all, at least as it applies to real fact patterns, technologies and innovations.


The industry is collapsing all because no one in a black robe has the guts to define the critical term that is the core of a test that is whimsically applied in arbitrary and capricious fashion. And why? The test is whimsical, arbitrary, and capricious precisely because it is unpredictable and never repeatable. Of course, the reason it is unpredictable and never repeatable is because different judges and panel configurations apply it based on their own subjective views because no one has ever taken the time to define the key term; no one cares to even attempt to interject objectivity to what is a hopelessly subjective, unpredictable and arbitrary test.