As the nation’s lone patent court, we are at a loss as to how to uniformly apply § 101. All twelve active judges of this court urged the Supreme Court to grant certiorari in Athena to provide us with guidance regarding whether diagnostic claims are eligible for patent protection. There is very little about which all twelve of us are unanimous, especially when it comes to § 101. We were unanimous in our unprecedented plea for guidance.
AMERICAN AXLE & MANUFACTURING, INC. v. NEAPCO HOLDINGS LLC, NEAPCO DRIVELINES LLC, 2018-1763, Order (Fed. Cir. October 23, 2020)(Judge Moore concurrence at page 2).
Section 101 is clear: “[w]hoever invents or discovers any new and useful process,” like the claims here, “may obtain a patent.” Yet, we have struggled to consistently apply the judicially created exceptions to this broad statutory grant of eligibility, slowly creating a panel-dependent body of law and destroying the ability of American businesses to invest with predictability.
AMERICAN AXLE & MANUFACTURING, INC. v. NEAPCO HOLDINGS LLC, NEAPCO DRIVELINES LLC, 2018-1763, Order (Fed. Cir. October 23, 2020)(Judge Moore concurrence at page 2).
The majority concluded as a matter of law that claims to a manufacturing process are not eligible for patent protection because they are directed to a law of nature even though no law of nature appears in the claims, the patent, or the prosecution history. Under the majority’s new “Nothing More” test, claims are ineligible when they merely make use of a natural law.
AMERICAN AXLE & MANUFACTURING, INC. v. NEAPCO HOLDINGS LLC, NEAPCO DRIVELINES LLC, 2018-1763, Order (Fed. Cir. October 23, 2020)(Judge Moore concurrence at page 3).
Instead, our decision in American Axle is a patent killing judicial exception of our own creation. The claims here are directed to a process for manufacturing car parts—the type of process which has been eligible since the invention of the car itself. They do not preempt the use of a natural law, a building block of science, which should be freely available to all. To nonetheless hold these claims ineligible, the majority broadens the judicial exceptions in a way that threatens to swallow the whole of the statute. Such a rejection of the plain language of the patent statute in favor of a vast and amorphous judicial exception in which we Federal Circuit judges get to decide de novo not just the legal principles, but the application of the science itself, cannot stand.
AMERICAN AXLE & MANUFACTURING, INC. v. NEAPCO HOLDINGS LLC, NEAPCO DRIVELINES LLC, 2018-1763, Order (Fed. Cir. October 23, 2020)(Judge Moore concurrence at page 4).
Once upon a midnight dreary, while I pondered, weak and weary,
“The Raven” by Edgar Allan Poe, first stanza.
Over many a quaint and curious volume of forgotten lore—
While I nodded, nearly napping, suddenly there came a tapping,
As of some one gently rapping, rapping at my chamber door.
“’Tis some visitor,” I muttered, “tapping at my chamber door—
Only this and nothing more.”
You can read the entire concurring opinion here: [Link].
You can read “The Raven” by Edgar Allan Poe here: [Link].