Particularly since Bilski and continuing through its more recent patent-eligibility cases, the Supreme Court undergirds its denials of patent-eligibility to the concept that patents “preempt” future research, which is contrary to historic precedent.
Exorcising the Ghost of Deuterium: The false concept denying a right to experiment on a patented invention was fueled by Deuterium Corp. v. United States, 19 Cl.Ct. 624 (Cl.Ct.1990)(Rader, J.), which continues to haunt Madison Place. Until the Federal Circuit exorcises Deuterium through an en banc clarification of the law of the right to experiment “on” a patented invention, the appellate tribunal provides cannon fodder to the Supreme Court view that patents “preempt” research.
The challenge for the Federal Circuit is explained in a new paper, “19th Century Patent-Eligibility Denials Vel Non: The Emperor Wears No Clothes” (attached).