On July 31, 2020, the Court of Appeals for the Federal Circuit denied American Axle’s petition for en banc review, in American Axle & Manuf., Inc. v. Neapco Holdings LLC, with those judges seeking review not able to muster a majority of the entire panel. This is the second iteration of appellate review for American Axle’s U.S. Patent No. 7,774,911 (‘911) in which the ‘911 claims directed to auto manufacturing propeller shafts were found ineligible as patentable subject matter under 35 U.S.C. §101.
The majority’s opinions – Chief Judge Prost, and Judges Dyk, Wallach, Taranto, Chen, and Hughes – were unspectacular in their §101 analyses. Six judges dissented: Judges Newman, Moore, O’Malley, Reyna, Stoll, and Lourie. (Because the dissenters were not a majority of the full Fed Circuit panel, procedurally the case was denied en banc review.) Justice Newman opened her dissent with:
The court’s rulings on patent eligibility have become so diverse and unpredictable as to have a serious effect on the innovation incentive in all fields of technology.
Further, she noted:
All technology is based on scientific principles – whether or not the principles are understood . . . The word principle is used by elementary writers on patent subjects, and sometimes in adjudications and sometimes in adjudications of courts, with such a want of precision in its application, as to mislead. It is admitted, that a principle is not patentable. A principle, in the abstract, is a fundamental truth; an original cause; a motive; those cannot be patented, as no one can claim in either of them an exclusive right . . . The processes used to extract, modify, and concentrate natural agencies, constitute the invention. The elements of the power exist; the invention is not in discovering them, but in applying them to useful objects.
Justice Newman has been one of the most critical voices on the Fed Circuit against the Alice/Mayo ambiguation of §101’s patentable subject matter requirement. Her dissent encapsulates the doctrinal issue with the Alice/Mayo analysis.
 ___F.3d___ (Fed. Cir. 2020) (en banc) (rehearing en banc denied).