In a month where the Supreme Court's conservative majority has exercised its judicial muscle by striking down several well-established precedents, one portion of their jurisprudence is as fixed a constant as the Northern Star: the Court will not address the morass in patent subject matter eligibility created by the decisions in Bilski, Mayo, Alice, and Myriad, and once again refused to do so in American Axle & Mfg. Inc v. Neapco Holdings LLC. For a Court whose political inclinations are evident and frequently commented upon, the chorus of dissent regarding the state of subject matter eligibility law from the patent community, industry groups, the U.S. Patent and Trademark Office, members of Congress, half (at last count) of the judges on the Federal Circuit, and the Solicitor General has fallen on particularly deaf ears, this refusal being the latest (along with denial of certiorari today in another, less celebrated subject matter eligibility case, Spireon, Inc. v. Procon Analytics, Inc.) in an increasingly long line.
Perhaps this is a blessing in disguise, however, because it is possible that the Court recognizes its decisions have backed the Justices into a rhetorical corner (albeit a Minoan labyrinth may be a better analogy) from which there is no doctrinally straightforward way out. Alternatively, the Court may believe that the district courts and Federal Circuit have more work to do in clarifying (or muddying) subject matter eligibility law before they will revisit the question. They may be waiting for Congress to step forward, believing that whatever else their decisions have done they have illuminated the divide between stakeholders who need certainty in the law, such as biotechnology and pharmaceutical companies whose products are sufficiently costly that uncertainties in return on investment threaten to impair innovation, and other companies who would rather more readily be able to "efficiently infringe." Or perhaps it's as simple as the Court, like Professor Quincy Adams Wagstaff in Horse Feathers, has decided that "whatever it is, I'm against it."
The parlous state of Section 101 remains uncorrected.
