The Supreme Court's Section 101/Abstract idea cases have jumbled together issues and left a wake of patent invalidations behind them. AIPLA is making a proposal for a legislative fix. The proposed new statutory language aims to overrule much of the Supreme Court's approach:
While this new statutory language would improve on the current state of affair, the questions remain as to whether it can be passed into law, and whether the Supreme Court will allow such restrictions on its ability to kill patents even if passed.
While the Supreme Court might still kill patents that are too abstract under its own theory of limits on the patent system, subsection (c) would appear to address the mixing together of the Section 101 analysis with that of Sections 102, 103, and 112. As the AIPLA proposal explains:
This prohibition seeks to stop decision makers from conflating the patent eligibility inquiry with the novelty and nonobviousness inquiries under Sections 102 and 103. The well-developed, rigorous analysis required by Sections 102, 103, and 112 prevents applicants from obtaining patent claims to more than what they actually invented without perpetuating the confusion that has resulted from an overreaching and malleable Section 101 analysis.
In the meantime while we wait for a legislative fix, inventions that solve problems in our digital world will continue to die a painful, abstract, death.