How Justice Barrett’s confirmation might impact patent eligibility

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”.

Yet the test put forth in Alice has been criticised as being  vague and unpredictable, and despite calls for the Supreme Court to clarify the Alice standard, including from the US Court of Appeals for the Federal Circuit, the Supreme Court in January 2020 denied five petitions for certiorari directed to section 101 issues.

This year, in American Axle & Mfg v Neapco Holdings (2020), the Federal Circuit held that a drive shaft with a liner tuned to attenuate vibrations was directed to a patent-ineligible law of nature because tuning the liner is an implementation of Hooke’s Law—a method for calculating a vibrational frequency.

Historical cases

With a certiorari petition likely to be filed in the closely-watched American Axle case, the Supreme Court may soon decide whether to revisit section 101. If it does, the presence of yet another textualist has the potential to impact the status quo of patent eligibility, in particular, by emboldening Justice Neil Gorsuch who has already proved to be an active voice in patent matters since he took his seat in April 2017.