35 U.S.C. § 101 provides patent protection to “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” The Supreme Court previously concluded that Congress intended patentable subject matter to “include anything under the sun that is made by man.” Nevertheless, over the past five years the U.S. Supreme Court has made a series of decisions that narrowed the scope of subject matter eligible for patent protection.

In Mayo the court held that correlations between the concentrations of a metabolite in the blood and the concentration of a drug are not patent eligible because such correlations are “laws of nature.” In Alice the Court not only limited the patent eligibility of computer-implemented methods and systems, but it articulated that the “Mayo framework” should be used in all cases in which the Court had to decide whether some category of technological innovation was inside or outside the scope of the patent system.

As a result of the overly broad, sweeping decisions made by the Supreme Court over the past five years, many important inventions that otherwise satisfy all statutory requirements for patent eligibility are no longer receiving proper patent protection. This paper discusses the context and implications of the holdings of Chakrabarty, Diehr, Bilski, Mayo, Myriad, and Alice, and it uses the facts and posture of Ariosa to illustrate that patent protection is being denied to remarkable inventions based on the newly created judicial exceptions to patent eligibility.

This paper concludes by proposing that since judicial decisions rely on the facts which led to the dispute, judicially created exceptions to 35 U.S.C. § 101 should be narrowly applied to one or more classes in the Cooperative Patent Classification System (CPC). Because patents in the same class have similar technical features, the application of a judicial exception to patents in the same or similar classes would limit the possibility of unanticipated consequences for inventions in various fields that fall under the broad application of exceptions based on specific facts.