Summer 2016 has been an interesting time at the Federal Circuit. Several software patent eligibility cases have come down in favor of eligibility (i.e., Enfish, BASCOM, and McRo). These cases, along with the decision in TLI Communications, which found the claims patent ineligible because they did not related to an improvement computer technology, give an important glimpse into the future of patent eligibility in a post-Alice world.
There has similarly been a patent eligibility decision from the Federal Circuit in the life sciences area where the claims were found to be patent eligible (i.e., Rapid Litigation Management), and the Federal Circuit has seemingly started to cast a more skeptical eye upon the Patent Trial and Appeal Board (PTAB), reversing and remanding decisions in several cases (i.e., Veritas Technologies, and In re Aqua Products). The Federal Circuit practice of using Rule 36 summary affirmances and nonprecedential opinions continues at an unusually high rate.
Interestingly, the Federal Circuit also seems to be pivoting, at least to some extent, with how they handle the question of obviousness. For example, in Arendi S.A.R.L. v. Apple, Inc., the Federal Circuit addressed important limitations on the use of common sense in an obviousness determination. While common sense plays a role in a proper obviousness determination, it cannot be used to supply missing elements or limitations to a prior art combination. See Common Sense is No Substitute.
Through all of these cases, over the last several months certain new trends are developing at the Federal Circuit as the court pivots to address the new reality of a much more interested Supreme Court, and the reality of a dramatically increased case load thanks to the enormous popularity of the AIA-created post grant administrative proceedings.
Join me on Tuesday, September 20, 2016, at 1pm Eastern for a discussion on Federal Circuit Trends in a Post-Alice World. I will be joined by Robert Schaffer and Joseph Robinson, partners at Troutman Sanders and co-authors of the Federal Circuit Review. In addition to addressing the aforementioned cases and trends, we will take as many questions from the audience as possible. CLICK HERE to REGISTER.