“Physical Realm” Test and Patent Law is Pending Problem for Quantum Computing. Though our title may be a tongue-twister or humorous, or both, the issue is not, either. This issue bears watching. Concern should be with all of us in quantum computing or emerging technology. Qubit.
Fix 101. Excerpt: On March 8, Foster Pepper filed a petition for certiorari with the Supreme Court, case number 18-1199, challenging the Federal Circuit’s emerging “physical realm” test as part of its Alice/Section 101 analysis.
The case addresses recent Supreme Court, Federal Circuit, and trial court decisions interpreting Section 101 of the Patent Act in a manner that invalidates any computer-implemented patents based on the conclusion that computer-implemented inventions involve patent-ineligible “abstract ideas.”
This case also warrants review because the Federal Circuit used the case to impose its own “physical realm” test, which is not based on any precedent under our patent system. The “physical realm” test, which would require inventions to be in the “physical realm” as opposed to the “digital realm,” in order to be patentable, would categorically exclude computer-implemented technology from patentability.
Finally, this case is an appropriate test case for the Supreme Court because of the significant prior scrutiny of the invention and patent at issue. This case concerns an invention that meets all the statutory qualifications for patentability.