This Note will examine whether the cases comprising the eligible subject matter trio are inherently inconsistent. In looking at this issue, this Note will ask if Classen Immunotherapies can be reconciled with the patent eligibility trio, or if both the case and Judge Rader's concerns could have been dealt with more effectively by applying 35 U.S.C. § 101 as a last resort, and instead determining patent eligibility via 35 U.S.C. §§ 102, 103, and 112. It is fundamentally more difficult, expensive, and time consuming to ascertain which category of patentable subject matter a claimed invention falls into, or if the claimed matter satisfies the patent eligibility trio, than it is to determine whether the requirements of novelty, obviousness, and enablement have been satisfied. This is especially so given the creative means with which practitioners will draft claims to "satisfy" the requirements.
Echoes from the Past: How the Federal Circuit Continues to Struggle with Patentable Subject Matter Post-Bilski,
77 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol77/iss2/10