The doctrine of patent eligible subject matter under 35 U.S.C. § 101 is a “real mess.” Other apt terms to describe this doctrine, and the jurisprudence surrounding it, include “chaos” and “crisis.” Few question whether patent eligible subject matter is a problem; however, many do not realize how high the stakes are and how dire the consequences. The erosion of patent protection, in part due to the “chaos,” impacts the willingness of companies to invest in innovation. This is especially true in today’s most important technologies where innovations occur in the spaces most likely to be flagged as ineligible subject matter, including life sciences and computer-related investments. A lack of investment in research and development, leading to decreased innovation, is not theoretical. Just recently the United States dropped out of the list of the top ten innovative countries. The crisis is real.
Kristen Osenga,The Problem with PTAB's Power Over Section 101, 17 Chi. -Kent J. Intell. Prop. 405 (2018).