Whether the PTO's standards for determining operability under § 101 are biased against groundbreaking inventions

QUESTIONS PRESENTED The patent claims in Petitioners’ four patent : applications are based on their experimental discoveries related to quantum entanglement while conducting brain research. These discoveries were published in peer-reviewed scientific journals. However, the patent claims were all rejected by the PTO and the said rejections were then affirmed by the Federal Circuit under 35 U.S.C. § 101 on the grounds of operability by applying a “heightened standard” not found in the statutes nor any case decided by this Court, and judicial exception of natural phenomenon in one application. Indeed, this Court had scarcely considered .the fundamental threshold question of operability under § 101 since the Patent Act of 1790. The Board stated that “[wle have no doubt that if [Hu]’s invention is able to use quantum entanglement to ... it would be both groundbreaking and revolutionary” (App. 34a). Citing Hamlet by Shakespeare in a footnote, the . Federal Circuit stated that “{slhould further investigation bring peer recognition and verifiable results, the PTO ... would surely be interested” (App. 24a). The questions presented are: . 1. Whether the PTO’s varied standards, buttressed by the decisional law of the lower reviewing courts, for determining operability under § 101 are biased towards conventional inventions but against groundbreaking inventions or discoveries, thus hindering the promotion of the “Progress of Science and Useful Arts” emanating from the Intellectual Property Clause of the U.S. Constitution. ii ' I QUESTIONS PRESENTED -— Continued 2. Whether the Federal Circuit erred by applying a “heightened standard” of operability under § 101, “typically measured by reproducibility of results”, when claimed inventions or discoveries are considered to contain concepts straining scientific principles, thus effectively raising the standard of proof on operability from “more likely than not true” to “beyond a reasonable doubt” or “as a matter of ; statistical certainty.” 3. Whether the decisional law of the reviewing courts, creating judicial exceptions to patent eligibility under § 101, has no statuary basis and thus inapplicable in light of this Court’s recent decision in Henry Schein, Inc. v. Archer & White Sales, Inc. 139 S. Ct. 524 (2019). 4. Whether the PTO personnel and the Federal Circuit can substitute their common sense and common knowledge for the specialized knowledge and expertise of a person having ordinary skill in the art (“PHOSITA”) in determining operability under § 101.