Judicial exceptions to patent eligibility weaken protection.

Section 101 states only that "whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."

The statute does not identify special areas that are not patent-eligible, but the courts have developed case law that abstract ideas and laws of nature can't be patented. Those exceptions to patent-eligibility have gained new force after the high court invoked them to invalidate patents on human genes in Myriad and a computerized method of hedging risk in Alice.

Since those decisions, courts have cited them to invalidate numerous software and biotech patents that they have said claim simply abstract ideas or natural phenomena, although some judges have said they find it difficult to apply the high court's reasoning to other patents.

The recent decisions mean that the law on patent-eligibility is now "a real mess, and you could actually use much stronger language than that," Kappos said.

"We're dealing with a litmus test, an 'I know it when it see it' test," he said. Thousands of USPTO examiners and hundreds of judges have to make that call, and "we're now seeing real chaos," Kappos said.

Courts can ensure that patents are not allowed on basic concepts while protecting true innovations by faithfully applying other areas of patent law to ensure that patents are not obvious or anticipated or lacking in written description, he said.