By Michael Borella — Bad law often gives rise to creative legal arguments. But the application of such creative lawyering is necessarily bounded by ethical rules and notions of fair dealing. Patent eligibility, in its current incarnation, has been argued to be bad law by many. The current judicial interpretation of 35 U.S.C. § 101 is at best vague and at worst a subjective inquiry in which the proclivities of the reviewer (whether patent examiner, administrative judge, or federal judge) often matter as much or more than the claims under review. Such a situation is inexcusable, but still does not…
