Limiting judicial exceptions increases patent thickets

With regard to the balancing test in the context of patent eligibility specifically, the primary concern with imposing limits to broad eligibility relates to preemption.201 The three judicial exceptions are "the basic tools of scientific and technological work."202 Allowing single parties to exercise a monopoly over such broad rights would "inhibit further discovery by improperly tying up the future use of[] these building blocks of human ingenuity."203 Some empirical evidence specifically analyzing the impact of the Alice decision has found that "an overly permissive intellectual property rights system can slow the very growth it was intended to promote."204

With these broad principles in mind, there exist conflicting views on the role of patent eligibility in promoting innovation. The theory behind patent subject matter eligibility,205 as well as its criticisms and defenses have been extensively covered.206 Some view a meaningful eligibility threshold as important to prevent broad patent rights that can impede more than promote the progress of "science and the useful arts."207 The proliferation of an astronomical number of software patents creates patent thickets that can make it incredibly difficult (and expensive) [*35] to facilitate the incremental innovation common in the industry.208 As a classic example, Professor Mark Lemley cites to the Wright Brothers' broad patent written in functional language that stalled innovation in flight for many years.209