For over 70 years, the Court has used a common law patent eligibility test that deviates from the language and plain meaning of the patent eligibility statute. See, e.g., Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127 (1948); Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66 (2012); Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014). The Court's so-called "judicial exceptions" test for eligibility is built on its own prior decisions and it has been modified and restated over time. See Mayo, 566 U.S. at 71 ("[p]henomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work"); Gottschalk v. Benson, 409 U.S. 63, 67 (1972) (same).

Yet throughout its history, the Court has not engaged in statutory construction to determine whether the patent eligibility statute requires use of a common law standard to fill a gap. Nor has it analyzed the "judicial exceptions" test against the Constitutional grant of power—solely to Congress—to promote the progress of science by securing to "Inventors" exclusive rights to "Discoveries" for limited times. US Const. art. I, § 8, cl. 8. The Court's common law test explicitly excludes discoveries from the scope of subject matter that inventors may protect.

1. The first 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 interpreter of statutes in crafting this conflicting judicial patent eligibility 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 Court-developed common law eligibility standards.

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