Robert Frederickson

Much has been written about the uncertainty in U.S. patent law concerning laws of nature, natural phenomena, and abstract ideas following the Supreme Court’s decisions in Mayo v. Prometheus and Alice Corp Pty Ltd v. CLS Bank Int’l. A recent decision from the Enlarged Board of Appeal at the European Patent Office (the Enlarged Board), however, demonstrates that the United States is not alone in grappling with issues surrounding patent eligibility. In the case of genetically modified plants and animals, questions arise on where to draw the line between human invention and biological processes. Earlier this year, the Enlarged Board reversed a 2015 decision that had held that product-by-process patents could be sought for genetically modified plants and animals despite a patent exclusion for “essentially biological processes.” 

Five years ago today, the Supreme Court issued its decision in Octane Fitness LLC v. ICON Health & Fitness, Inc., empowering district courts to award attorneys’ fees in those patent case that “stand out from others.”  Last year, we crunched the numbers and explored several notable trends that have emerged post-Octane Fitness. For that article, we looked at nearly 420 decisions spanning nearly four years. In the last 14 months, district courts have been asked to declare patent cases exceptional another 165 times. Below, this article revisits the statistics and takes a deeper look at the line between zealous advocacy and litigation misconduct that can serve as the basis of an exceptional case determination.