Post grant reviews will shape what subject matter eligibility is.

PGR may be the most powerful proceeding for invalidating patents. 27 PGR's scope is the broadest of any other post-grant proceeding 128 because a petitioner "may request to cancel as unpatentable one or more claims of a patent on any ground."'129 This includes novelty, obviousness, utility, indefiniteness, written description, enablement, and most importantly, for this Note's purpose, subject-matter eligibility. Unlike CBMR, PGR does not limit a petitioner to business method patents. But a major limitation for PGRs is petitioners may only challenge patents that issue under the AIA's first-to-file regime (i.e., have an effective filing date on or after March 16, 2013).130

Since the Supreme Court's ruling in Bilski, Mayo, Myriad, and Alice, petitioners have been challenging patents on the basis of subject-matter eligibility under § 101. In American Simmental Ass 'n v. Leachman Cattle of Colorado, LLC, one of PGR's first final written decisions, the PTAB invalidated a patent under §§ 101 and 103. The patent "relate[d] generally to genetic quality and relative market value of livestock." 131 The patent specifically disclosed embodiments of the invention that facilitated "an owner or potential buyer of one or more sale groups of livestock to evaluate the relative market value of the sale groups based on predictions derived from genetic merit estimates of the herd., 132 With respect to § 101, the PTAB followed the Alice-Mayo two-step. 133 First, the PTAB found that the claims were directed to the fundamental concept of "'determining an animal's relative economic value based on its genetic and physical traits,' and that such a fundamental concept is a patent ineligible abstract idea.' '134 After determining that the claims were directed to an abstract idea, the PTAB found that "all computer recitations in the challenged claims [were] recitations to generic computer hardware used in a conventional manner, which [were] insufficient to impart patentability under Alice." Following the Alice-Mayo framework, the PTAB held the claims were invalid because they were not patentable subject matter. 13

Deciding a petition that challenges subject-matter eligibility, the PTAB must apply the Alice-Mayo framework laid out by the Supreme Court. Because PGR is relatively new and can only hear patents that issued under the AIA, there are fewer petitions than other post-grant proceedings.136 Because there are less filings, it will take time to see PGR's true effect on § 101, specifically in technology areas where issuing patents take longer.' 37 Furthermore, because the PTAB may initiate a PGR petition if it "raises a novel or unsettled legal question that is important to other patents or patent applications,"' 38 the PTAB has more discretion to either "shrink or expand" the scope of what is patentable subject matter under § 101.139 This is true particularly in technology areas that are evolving at a fast rate-such as biotechnology and bioscience-because it is no secret that many in the patent community want to expand the scope of patentable subject matter. 40 As a result, the PTAB, through the venue of PGR, will soon become a crucial institution for shaping the doctrine of § 101. Currently, PGR has not allowed the PTAB to change what subject matter is patent eligible.