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Before proceeding to the final question in the extra-statutory patent eligibility test, it is worth pausing to point out that the Supreme Court has so far refused to define the term “abstract idea” despite the fact that it is singularly important to determining whether software innovations, including innovations relating to artificial intelligence, blockchain and Internet of Things (IoT) methods and systems are patent eligible. Indeed, the Supreme Court has opened Pandora’s box on the next great frontier of innovation while arrogantly refusing to define the critical term in the extra-statutory test of their own creation – saying that they do not need to “labor” to define the meaning of the term “abstract idea.”

As insulting as it is that the Supreme Court refuses to define the term “abstract idea”, the Supreme Court also uses the terms “natural phenomena” and “laws of nature” interchangeably, saying that they do not need to precisely identify which of the judicial exceptions they are using when analyzing the patent eligibility of a claimed invention in the life sciences sector. Again, this is their own test, and the Supreme Court mandates its application but refuses to define the key terms and phrases. How any jurist trained in the American system can believe an extra-statutory test is consistent with norms of American jurisprudence is a mystery, but hiding the ball and refusing to define key terms and concepts is truly unbelievable.

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