The plan strengthens previously granted patents, not just future ones

As will be explained in the next section, the USPTO is dissecting patent applications and courts are dissecting previously granted patents down into the foundational elements that underlie all inventions and discoveries—and denying that these are patentable as such under the Alice-Mayo framework. In one recent and notorious example, the courts disintegrated a method of making an axle in an automobile engine down to the laws of thermodynamics that underlie all machines and invalidated the patent.15 Nineteenth-century industrial technologies are now being denied patent protection in the 21st century, not because they are not new, but because judges and administrative officials are saying they are not even inventions. Even worse, given that any invention can be disintegrated down into underlying laws of nature or abstract ideas, patent applicants or patent-owners have no way of predicting when a patent examiner at the USPTO or a judge may choose to do this.

As a result of the Alice-Mayo framework, the U.S. is now denying patent applications or invalidating issued patents claiming cutting-edge discoveries in medical care, such as treatments for breast cancer, diabetes, and strokes, among others.16 This is an alarming shift from the historical approach of the U.S. in securing reliable and effective patent rights in new innovations, which has been a key driver of economic growth in the U.S. This not only threatens economic growth and the new medical treatments and high-tech products that we rely on in our day-to-day activities in the 21st century, but it threatens the long-standing world leadership in innovation by the U.S. that has been driven by its once “gold standard” patent system.17