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Abstract

“A or B” is inconsistent with “A not B.” This describes why the application of 35 U.S.C. § 101 by the U.S. Supreme Court is inconsistent with the U.S. Constitution, and thus unconstitutional. This article tracks the legislative history of patent eligibility from 1790 to 2011, and the parallel but inconsistent U.S. Supreme Court case law during this period. In following its own case law, the Court has shown extraordinary judicial activism, has penciled out two words of the federal statute (“or discovers”), and has penciled a word out of the U.S. Constitution (“discoveries”).

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