It impacts the whole industry of biotech.

Bioscience, which is broader than bioinformatics, however, faces various layers of uncertainties, such as the uncertainties in research, in finding an application of the research to human health, and in patent applications. Patents incentivize scientists and firms to engage in bioscience R&D despite these uncertainties.268 Even though innovation in bioscience may harm or benefit mankind, the Supreme Court has noted that it does not mean to deter or disincentivize innovation in bioscience, especially genetic research, by requiring a narrow scope of patentable subject matter in bioscience.269 The utility bar excludes some bioscience research from patentability if the application of the research is uncertain, regardless of the efforts made to obtain those research findings.270

When the utility requirement cannot be satisfied due to uncertainties in the research results, inventors may attempt to bring more specificity or clarity by engaging in further R&D. However, when the Alice decision induced more § 101 rejections, the previous utility rejections under § 101 were expanded to include rejections for ineligible subject matter, also under § 101, further compounding the uncertainty in prosecution outcomes and increasing the overall cost of patent prosecution. As David Taylor’s survey regarding investors shows, not receiving patent protection directly results in lesser investment in biotechnology by venture capitalists and private equity investors.271 There is a continuing concern that the Alice decision obfuscates the distinction between eligibility under § 101 and non-obviousness under § 103 by focusing on what is generally known in the art. This concern is also addressed in the text of the proposed eligibility legislation introduced in the House.272 Nevertheless, we find that the association between § 101 rejections and §§ 102, 103, or 112(b) rejections decreased after Alice among patent applications in narrowly defined bioinformatics (e.g., art units 1631 and 1639). By contrast, the association between § 101 rejections and § 112(a) rejections for patent applications in narrowly defined bioinformatics increased after Alice. That strengthened association may suggest that overcoming the problems of written description and enablement may help with overcoming § 101 eligibility rejections in bioinformatics.