"WE DON’T DO SECTION 101 ANYMORE," THE SUPREMES

D. Benjamin Borson

Borson Law Group P.C.

INTRODUCTION

With the denial of certiorari in Am. Axle & Mfg. v. Neapco Holdings LLC, No. 20-891, 2022 U.S. LEXIS 3240 (June 30, 2022), the Supreme Court of the United States (SCOTUS) has again avoided dealing with the confusion and inconsistency about 35 U.S.C. Section 101. This is unexpected since one may have been excused for thinking that at least the six Justices in the majority in the Dobbs v. Jackson Women’s Health Org., No. 19-1392, 2022 U.S. LEXIS 3057 (June 24, 2022) decision would believe that the constitution ought to be given its original public meaning that it would have had at the time that it became law unless Congress has otherwise spoken. That is, one would expect that SCOTUS would want to reverse their 2012 decisions in Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 132 S. Ct. 1289 (2012) and Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 134 S. Ct. 2347 (2014), to allow the proper understanding of Section 101 to be based on the Constitution and the 1952 Patent Act.