Your point is, at a purely statutory level, fairly compelling. And it's essentially the point the plaintiffs made in this case: the "abstract principle" exception to subject matter eligibility should be construed narrowly, given the broad wording of 101 and the fact that it's a judicially-created exception.
But, invalidating this patent on 101 grounds versus 103 grounds is not the same. Subject matter eligibility is something that can be ruled on in a motion to dismiss, In re Bilski, 545 F.3d 943, 951 (Fed. Cir. 2008), while obviousness will generally need to wait after claim construction. It should be possible to knock out patents that claim a fundamental practice in any field as early as possible.
You can make other distinctions between "a fundamental practice" and "prior art," too. In the field of cooking, do we have to point out prior art for making a roux, or do we just accept that someone, perhaps many someones independently, did it sometime long ago, but it's so established now that it might as well be a fundamental law of the field?
Over time, the Supreme Court has been beefing up 101 as a bar to patent eligibility. Is the interpretation in CLS v. Alice the one that's most faithful to the text of the statute? Probably not. But interpretation in the name of controlling the flow of litigation in lower federal courts is one of the key roles of the Supreme Court.
I have a tangentially related question: has there been any thought given to raising patent validity standards around teachability? A big constitutional point of a patent is to teach someone "skilled in the art" how to replicated the subject matter of the patent. That's typically intepreted as "can you pay an expert witness to claim the patent teaches them to construct the claimed infringement," which is, of course, always true. But to me, this seems like fertile ground for the defense, and ought to be a negative test: can the defense find an expert witness to say that the patent is too vague, unspecific, or abstract to teach them to construct the claimed infringement.
Is this approach ever tried in these cases? It seems to me that the more convoluted and abstract the patent (which seems to be the point of many of these patents explicitly written to try and reach as broad as possible), the more juries will tend to identify with the expert saying "I can't make heads or tails of this thing" and invalidate bad patents as simply failing to adequately teach the construction of the infringement claim.
This would be a challenge to the validity of a patent on Section 112 grounds. However, there would not be an expert witness involved, as it's a question of law to be determined by a judge. See: http://scholar.google.com/scholar_case?case=1212705333151944... (Section B, starting on page 495). This does get used in practice, successfully.
Ah, I had not considered how this would affect downstream litigation procedures. Thanks for the explanation. I strongly believe we need more tools to dismiss frivolous litigation as early as possible, so in that light this seems more favorable.
But, invalidating this patent on 101 grounds versus 103 grounds is not the same. Subject matter eligibility is something that can be ruled on in a motion to dismiss, In re Bilski, 545 F.3d 943, 951 (Fed. Cir. 2008), while obviousness will generally need to wait after claim construction. It should be possible to knock out patents that claim a fundamental practice in any field as early as possible.
You can make other distinctions between "a fundamental practice" and "prior art," too. In the field of cooking, do we have to point out prior art for making a roux, or do we just accept that someone, perhaps many someones independently, did it sometime long ago, but it's so established now that it might as well be a fundamental law of the field?
Over time, the Supreme Court has been beefing up 101 as a bar to patent eligibility. Is the interpretation in CLS v. Alice the one that's most faithful to the text of the statute? Probably not. But interpretation in the name of controlling the flow of litigation in lower federal courts is one of the key roles of the Supreme Court.