Posts Tagged: "software patents"

Change May Be Coming: Members of Congress Release Framework to Fix Patent Eligibility Law

In a promising indication that there is real momentum on The Hill to fix Section 101 law, several Senators and Representatives today proposed a framework for addressing 101-related patent reform.Senators Thom Tillis (R-NC) and Chris Coons (D-DE)—respectively, Chair and Ranking Member of the Senate Judiciary Subcommittee on Intellectual Property—and Representatives Doug Collins (R-GA-9), Ranking Member of the House Judiciary Committee; Hank Johnson (D-GA-4), Chair of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet; and Steve Stivers (R-OH-15) announced earlier today indicating that “months of hard work by the Senators and Representatives has led to this bipartisan, bicameral framework.” IPWatchdog has been reporting for some time that closed-door meetings have been held with stakeholders and members of congress to gather information on the problems with patent eligibility law. IPWatchdog also has been told that the relevant members of congress intend to hold regular public hearings on the topic beginning soon. “I think it’s wise for congress to hit the reset button and reassert its authority with respect to the statutory requirements, and getting rid of the non-statutory judicial exceptions is an absolute must,” said Gene Quinn, patent attorney and President and CEO of IPWatchdog, Inc. “I just hope that whatever the ultimate statutory language is, it is very carefully limited and narrowly tailored; and I must confess that it worries me a little that the framework says that reciting generic language won’t be enough to save an otherwise ineligible claim.”

Invest Pic v. SAP America, Inc. Amicus Brief Takes on CAFC’s ‘Physical Realm’ Test

Among the seven amicus curiae briefs filed Monday with the U.S. Supreme Court in InvestPic, LLC, v. SAP America, Inc., Eagle Forum Education & Legal Defense Fund’s brief argues that the case demands a hearing because the Federal Circuit has added yet another extra-statutory test to the already distorted patentability jurisprudence. In a decision of May 15, 2018 authored by Judge Taranto, the Federal Circuit found the patent claims of U.S. Patent No. 6,349,291 invalid because they were directed to an abstract idea and lacked an inventive concept necessary to save the invention under 35 U.S.C. § 101. In the course of its opinion, the Federal Circuit created a “physical realm” test, which is nowhere to be found in 35 U.S. Code Section 101, having been wholly conjured by judges.

Senate IP Subcommittee Witnesses Offer Solutions for Finding ‘Lost Einsteins,’ But Miss Opportunity to Discuss Broader Patent Problems

On the afternoon of Wednesday, April 3, the Senate Committee on the Judiciary’s Subcommittee on Intellectual Property held a hearing titled Trailblazers and Lost Einsteins: Women Inventors and the Future of American Innovation. The day’s discussion on the U.S. Patent and Trademark’s recent report on gender disparity in patenting rates covered much of the same ground as the House Intellectual Property Subcommittee’s hearing on the same topic from the previous week, although a new witness panel was able to provide some fresh perspective on the issues. However, there were arguably some instances where the witnesses either supported or acquiesced to policies that damage the patenting prospects for at least some female inventors.

Reflections Upon Disagreeing with Judge Paul Michel

Recently, I’ve written several articles laying the blame for the patent eligibility crisis squarely on the Federal Circuit. Yes, we all know the Supreme Court is obviously to blame. They are the court with primary national jurisdiction, and there can be no doubt that the Mayo v. Prometheus decision is the root of the patent eligibility problem because it intentionally conflates novelty and obviousness with patent eligibility. In my recent writings, and in a variety or presentations and speeches I have been giving across the country—from Utah to Orlando to Charlotte—I’ve criticized the Federal Circuit for not distinguishing Mayo and Alice on the facts. If we listen to the Supreme Court at least, at issue in both Mayo and Alice were unusually simple “inventions” that are really not innovations at all. As I filed my latest article, Eileen said that she thought it was good because it would provoke discussion since I disagreed with Judge Michel’s view in the interview with him she had just published. There was a long pause in our conversation. “Am I really disagreeing with Judge Michel?” I asked. Whenever I disagree with Judge Michel, I pause. It isn’t that I am unwilling to disagree with him, but, over the years, I have come to learn that, when one is going to disagree with Judge Michel, prudence dictates reevaluating your position.

Recent Cases Show Federal Circuit Is Concerned About ‘Over Abstracting’ Rejections of Method/ Process Patents

In one of its latest opinions attempting to parse precedent on the subject matter eligibility of software, method of use, and business method patents that arguably involve application of laws of nature or recitations of well-known, conventional methods and techniques, the U.S. Court of Appeals for the Federal Circuit found that a patent directed to a method for administering a naturally occurring beta amino acid to cause an increase in the concentration of a naturally occurring amino acid combination in muscle and brain tissues was subject matter eligible for patent protection (Natural Alternatives Int’l, Inc. v. Creative Compounds, LLC, No. 18-1295, 2019 U.S. App. LEXIS 7647 (Fed Cir. March 15, 2019). The panel’s 2-1 majority decision conceded that the claims at issue involved laws of nature and had similarities to claims the U.S. Supreme Court had found subject matter ineligible but found that the claims possessed sufficient inventiveness beyond natural phenomenon and conventional methods to make them subject matter eligible for patent protection. Since Alice, the Federal Circuit and the federal district courts have been striving to implement and apply the Alice test to methods of use, software, and business method inventions that arguably involve applications of laws of nature and conventional methods. The challenge for the court in these cases has been to determine whether the claims sufficiently go beyond applications of laws of nature and known conventions to qualify as subject matter eligible for patent protection under Section 101. The Federal Circuit has found an inventive concept in several such cases.