“So tortured and bizarre has the evolution of the law of patent eligibility become that it is probably best summarized thusly: Every invention that embodies, uses, reflects, rests upon or applies scientific laws is patent ineligible.”
Last week, the Supreme Court refused certiorari in yet another patent eligibility appeal. I’ve lost count as to how many times the Court has refused to provide clarity to the fundamental question of patent eligibility since it last muddied the waters in Alice back in 2014. I stopped counting several years ago, when the number of petitions—pleas begging for help really—crossed over 50.
But the petition in American Axle was supposed to be different. Yes, the Federal Circuit has been hopelessly, and helplessly, split for years—a division and impotence of their own making. In American Axle the self-castrated Federal Circuit seemed to believe the Supreme Court modern quartet of patent eligibility cases renders nothing of importance or value patent eligible. In fact, the Federal Circuit actually ruled that a drive shaft is not patent eligible because the operation of the drive shaft fundamentally relies on Hooke’s law.
The Future of Eligibility Cases at the Federal Circuit
While the Supreme Court not taking cert. in American Axle does not mean the Court agreed with the Federal Circuit ruling, the failure to overrule the Federal Circuit does leave the Federal Circuit decision as precedent. The value precedent has is difficult to say when opining about the Federal Circuit. As even casual observers understand, Federal Circuit judges do what they want regardless of precedent.
There will be cases where Federal Circuit panels claim they now feel compelled to apply the idiotic ruling in American Axle. We will be told that they simply have no choice but to find invention after invention patent ineligible because that is what the Supreme Court mandated, as if they were not complicit in intentionally misconstruing what the Supreme Court wrote in Bilski, Mayo, Myriad and Alice.
Of course, the Supreme Court has cautioned the Federal Circuit not to let the law of patent eligibility swallow patent law, which it now has to the point that anything and everything regardless of form is ineligible. Even first year law students would be expected in a basic legal writing class to be able to distinguish in Bilski, Mayo, Myriad and Alice so that not everything is patent ineligible since, after all, the Patent Act says the exact opposite.
And good luck to those patent owners before panels of judges who believe the law now renders any invention ineligible if it is premised on a scientific law. Not to put too fine a point on it, but a full, fair and impartial application of American Axle renders everything patent ineligible. You simply cannot invent anything that is not fundamentally based on scientific law. Even the Supreme Court understood that much when the Court tried to warn the Federal Circuit in Alice that “[a]t some level, all inventions embody, use, reflect, rest upon or apply laws of nature, natural phenomena, or abstract ideas.” But here we are where Hooke’s law, which describes the force needed to compress a spring, renders a drive shaft patent ineligible.
The Federal Circuit has ignored the Supreme Court’s warning that every invention embodies, uses, reflects, rests upon or applies scientific laws, as if what the Supreme Court was saying was merely dicta. In fact, so tortured and bizarre has the evolution of the law of patent eligibility become that it is probably best summarized thusly: Every invention that embodies, uses, reflects, rests upon or applies scientific laws is patent ineligible. That all inventions so relate to scientific laws, natural phenomena, or abstract ideas is merely an inconvenient truth.
Consider the Implications
But rather than speak in the abstract, let’s discuss innovation in concrete terms, and consider the ramifications of a Federal Circuit that has intentionally neutered itself and a Supreme Court unwilling to step in despite near judicial incompetence on the issue of patent eligibility over the last dozen years.
For example, Snell’s law is used to describe the relationship between angles of incidence and refraction when referring to light or other waves passing through a boundary between two different media. Snell’s law is absolutely fundamental to innovations ranging from contact lenses to fiber optics, all of which are presumably patent ineligible as the result of American Axle. So too are wide swaths of green technologies, such as those that relate to the collection of solar energy, such as U.S. Patent No. 9,033,525, titled Optimum solar conversion cell configurations, and patented by NASA, which specifically references Snell’s law in the claims. Another example of a patent ineligible claim that is fundamentally reliant on Snell’s law is U.S. Patent No. 10,671,158, titled Three-dimensional (3D) rendering method and apparatus for user’s eyes, patented by Samsung, which includes in the broadest claim the step of calculating a value using Snell’s law. Obviously, these are but two easy, incontestable examples given that the claims specifically and fundamentally rely on a scientific law. The ubiquity of Snell’s law will render hundreds of thousands of optics related patents void if American Axle is actually applied as written.
Also consider Archimedes’ buoyancy principle, which states that the upward buoyant force of a body immersed in fluid, whether fully or partially, is equal to the weight of the fluid that the body displaces. The Archimedes’ principle is absolutely essential for myriad inventions relating to ships, submarines and hydrometers, to name a few. To put it into real patent context, inventions like U.S. Patent No. 11,1242,279, titled Submarine vehicle and control method, would have to be patent ineligible since the very existence of submarine technology is completely and totally reliant on Archimedes’ discovery. So too would inventions relating to floating airplanes, obviously, since the floatation principles observed by Archimedes are entirely responsible for the airplane not sinking. So, say goodbye to U.S. Patent No. 11,104,433, titled Aircraft float, and U.S. Patent No. 11,208,210, titled Float plane technology. Of course, amusement devices such as toys that float would have to be patent ineligible as well, including U.S. Patent No. 11,103,075, titled Infant float.
But then there is also Ohm’s law, which states that the current through a conductor is directly proportional to the voltage across two points, and is represented by I = V/R. So ubiquitous is Ohm’s law in the field of electrical engineering, it would hardly be an exaggeration to say that practically everything with a tangible electrical form would be rendered patent ineligible by a strict adherence to American Axle the way the Federal Circuit has set forth the precedent. Still, an example or two to drive home the point seem worthwhile. See U.S. Patent No. 9,625,517, titled Leakage current detection method and apparatus for detecting leakage of current from a board-mounted component, patented by Huawei Technologies, where the broadest claim literally includes the step of calculating the output voltage of the reference resistor using Ohm’s law. See also U.S. Patent No. 9,442,152, titled Fault location system and method for distribution network, patented by General Electric, where the fault location is calculated with great accuracy using Ohm’s law.
Everyone agrees that the Federal Circuit decision in American Axle is wrong and that the invention in question has always been the type of invention that has historically–for hundreds of years–been patent eligible. Yet, nothing is going to be done and at least half of the judges on the Federal Circuit—perhaps more—will now apply the ruling without thought or consideration. Patent eligibility in America is a train wreck, and those with the power to do something either created the problem and are choosing to ignore it (i.e., the Supreme Court), made the problem worse by applying decisions and statements out of context (i.e., the Federal Circuit), or ignore the problem like a bunch of ostriches with heads firmly planted in the sand because patents are a losing political issue unless everyone agrees on everything (i.e., Congress).
There is no hope for inventors. If the Supreme Court denied American Axle it is foolish to think they will take any case, particularly after the Solicitor General advised taking this case now. The Federal Circuit has said repeatedly they are not going to fix anything because they want the Supreme Court to take action, which simply won’t happen, so the industry is now held hostage by a bunch of judges and Justices in a turf war. And patents do not drive voters to vote, but as an issue they can and do animate donors who get upset when the wrong thing is done. So, Congress won’t act any time soon.
It is probably time for innovators to give up on the charade of patent protection in America and look elsewhere in the world, where patents matter. File patent applications using the Patent Cooperation Treaty, enter the U.S. national stage as late as you possibly can, and drag prosecution out as slowly as you can. In the meantime, pray that the Supreme Court, Federal Circuit or Congress comes to their senses, but for goodness sakes, don’t hold your breath!
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