How Justice Barrett’s confirmation might impact patent eligibility

The addition of Amy Coney Barrett to the US Supreme Court’s bench could lead to challenges to modern, judicially imposed restrictions on patent eligibility, say Joshua Reisberg and Aaron Savit of Axinn.

With Amy Coney Barrett confirmed, Donald Trump’s outgoing administration has succeeded in installing one-third of the justices on the US Supreme Court, each one an avowed “textualist”. 

But could Barrett’s confirmation affect the court’s approach to issues of patentable subject matter under 35 USC section 101? 

When the court last visited section 101 in Alice v CLS Bank International (2014), the court was undivided on the construction of the statute and its implicit mandate that “laws of nature, natural phenomena, and abstract ideas are not patentable”.