The Wisdom of Athena: Justices Criticize Current State of Patent Eligibility for Diagnostic Methods
Some of the most difficult problems in patent law today concern what can be patented. Patent-eligible subject matter is defined in 35 USC § 101, but the Supreme Court has added some exceptions for abstract ideas, laws of nature, and natural phenomena. These have led to controversy and uncertainty about what inventions can be protected by patents. This is starkly illustrated by medical diagnostic methods. In a recent Federal Circuit decision denying
a petition for rehearing en banc, all twelve of the Federal Circuit judges agreed that claims to the diagnostic method on appeal ought to be eligible for patentability, yet the patent was found to be invalid as unpatentable under current law.