Whether the Court's 'judicial exceptions' test for patent eligibility is unconstitutional and deviates from the plain language of Section 101 of the Patent Act

question presented is whether the Court’s “judicial exceptions” test is an unconstitutional deviation from the plain language of Section 101 of the Patent Act, the patent eligibility statute, and whether the Court has exceeded its Constitutional role as the ii interpreter of statutes in crafting this conflicting judicial patent eligibility test. The U.S. Patent and Trademark Office (PTO) has recognized the practical problems associated with application of the Court’s common law test to both issued patents involved in enforcement proceedings and pending patent applications subject to examination by the agency. In an effort to bring greater clarity, consistency, and balance to the process of analyzing patent applications for patent eligibility, the agency recently issued guidelines for examination of pending patent applications. USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“2019 Guidelines”). The 2019 Guidelines describe the patent eligibility exceptions using three specific categories of subject matter and also define “abstract idea” narrowly. But they only apply to the agency’s examination of patent applications and appeal proceedings involving issued or rejected patents. The 2019 Guidelines are better aligned with the spirit of the patent eligibility statute, but they do not replace the “judicial exceptions” common law doctrine that has been called “incoherent” and one that “give[s] little confidence that the outcome is necessarily correct” by the very judges tasked with applying it. Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1348 (Fed. Cir. 2018) (Plager, J., concurring-in-part and Berkheimer v. HP Inc., 890 F.3d 1369, 1376 (Fed. Cir. 2018) (rehearing en banc denied) (Lourie, J., concurring); Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354, 1360 (Fed. Cir. 2018) (rehearing en banc denied) (Lourie, J. concurring). This misalignment of PTO and court iii eligibility standards is also reflected in the lower courts’ inconsistent application of the “judicial exceptions” test. 2. Assuming the Court’s “judicial exceptions” test is a constitutional exercise of the Court’s statutory interpretation powers, the second question presented is whether the PTO’s current standard for patent eligibility is more consistent with the statute than the current Courtdeveloped common law eligibility standards.