Section 101 vs. Section 103

Norman wrote a blog post that discussed patent validity tests using Section 101 or Section 103 (from Title 35 of the U.S. Code, which is about patents). He mentioned that groups Google and Netflix prefer a Section 101 test, while groups like IBM prefer a Section 103 test.

These different sections correspond to the requirements for patent-eligible subject matter:

• Section 101: not abstract or law of nature
• Section 102: novel
• Section 103: non-obvious

So what are the differences between a test that emphasizes section 101 as compared to one that emphasizes 102 or 103? Section 101 is the easy way to kill a patent. To invalidate a patent, Section 102 requires an expensive search for prior art. Similarly, Section 103 requires expensive expert opinions, which can be contested by the patent applicant.

This case at hand, Alice v. CLS Bank, concerns the patentabilty of software patents. I discussed the case and the larger debate about software patents in an earlier blog post.

I also believe that a stronger Section 101 test would specifically target many software patents, which can be seen as abstract. As I discussed in a blog post, in a number of Supreme Court cases, from Gottschalk v. Benson (1972) to Bilski v. Kappos (2010), the Court has consistently held that an abstract process or transformation cannot become patent-eligible subject matter simply by including a computer.

I think your preferred test reflects your opinion on software patents. If you oppose software patents, you will want a strong Section 101 test that makes it easy to invalidate patents. If you are a proponent of software patents, you will want more flexibility with a Section 102 or Section 103 test that makes it harder to invalidate patents. It's hardly surprising that the briefs filed by software companies, which usually oppose software patents (or seek to restrict them), advocate for a stronger Section 101 test. Conversely, IBM, the largest patent holder, and AIPLA, an IP lawyers' group, advocate for Section 103 and against Section 101, respectively.

The Supreme Court ultimately invalidated the patents under Section 101.