See Part I
By: Robert R. Sachs
Preemption is the core concern that drives the Court’s “exclusionary principle”. The Supreme Court in Alice stated:
We have described the concern that drives this exclusionary principle as one of pre-emption. See, e.g., Bilski, supra, at 611-612 (upholding the patent "would pre-empt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea"). Laws of nature, natural phenomena, and abstract ideas are “"the basic tools of scientific and technological work."” Alice, at 2354.
Patents on “building blocks of human ingenuity” “would risk disproportionately tying up the use of the underlying" ideas, and are therefore ineligible for patent protection.” Id. at 2354-2355. (internal quotations and citations omitted).
Again, many of the commentators on the June 2014 Preliminary Guidance identified preemption as a primary concern that must drive the patent eligibility analysis, including parties on opposite sides of the patent eligibility debate: ACLU, AIPLA, BSA IEEE, Microsoft, Public Knowledge, Trading Tech, and six law firms and individuals. The Interim Guidance only mentioned preemption as result from the examiner identifying claim elements that “amount to significantly more than that exception,” rather than the core inquiry that drives the entire eligibility analysis.