Patent Eligibility of Predictive Algorithm in Second Generation Personalized Medicine

摘要

In order to foster promising innovation and boost the economy, a clear and operable patent standard is urgently needed. The current Mayo-Alice test proves to be inoperable and cumbersome, and creates more issues than it tries to solve. For an era that is built on Big Data and algorithms, the Mayo-Alice test has to be abandoned; otherwise, industries might turn toward trade secret instead and further hinder the growth of algorithm economy. Some commentators have argued that the Supreme Court has confused the difference between patent eligibility and patentability, while some defended the Supreme Court's position by focusing on the inventor's contribution. However, focusing on an inventor's contribution at Section 101 basically leaves Section 112 redundant, and the real question is not what the inventor's has contributed in Section 101, but, like EPO, whether it is a man-made invention. Under this approach, Second Generation Personalized Medicine predictive algorithms will not be denied before the chance to be assessed for patentability.