Posts Tagged: "35 USC 101"

Passing PERA Assures Patent Eligibility for All Useful Inventions

Confusion and misunderstanding among some independent inventors might slow or stall progress of the excellent eligibility reform bill recently introduced by Senators Chris Coons (D-DE) and Thom Tillis (R-NC). Titled the Patent Eligibility Restoration Act (PERA), the legislation would overturn Supreme Court and Federal Circuit decisions that scrambled settled law, excluding many worthy classes of inventions, such as medical diagnostic methods and advanced computer applications.

Tillis, Michel, and Kappos File Amici Curiae in American Axle at Supreme Court

On Monday,, March 2, an Amici Curiae Brief in Support of the Petition by American Axle was filed by Senator Thom Tillis, Honorable Paul Michel and Honorable David Kappos. The three amici conclude that they are “all convinced that section 101 is gravely damaging our country’s ability to succeed in the race for global innovation leadership, and all convinced that the solution to the dilemma lies with the Court taking up the American Axle case.”

Flaws in the Supreme Court’s §101 Precedent and Available Ways to Correct Them

Amid the crush of patent-eligibility case law, see 35 U.S.C. §101, patent lawyers and even courts can lose sight of the key principles and precedents that serve as the foundation of the eligibility analysis. Or they may not have appreciated in the first place the underlying bases for these §101 cases and whether, for example, those cases accord with precedents they cite from decades before. In any event, this article addresses these foundational Supreme Court precedents for §101 and the Mayo-Alice ineligibility regime that dominates the patent landscape today. In particular, we trace the Court’s precedents from nearly 50 years ago, with an emphasis on key cases separated by some 30 years but tied together by the Court’s representation that it has faithfully followed (and not overruled) any such precedent. After analyzing the precedent in this light, with due emphasis on the Supreme Court’s decisions in Diamond v. Diehr, 450 U.S. 175 (1981) and Mayo Collaborative Servs. v. Prometheus Laboratories, Inc., 132 S.Ct. 1289 (2012), the article briefly examines the U.S. Patent and Trademark Office’s 2019 Patent Eligibility Guidance on §101—the Article II branch’s response to the §101 sea change wrought by the Article III courts. Finally, based on these authorities, the article offers a mix of points and observations for patent litigators and judges to consider as they continue to shape §101’s eligibility law.

The ‘Iancu Effect’ Won’t Matter if Not Supported by the Courts or Congress

The Global Innovation Policy Center (GIPC) of the U.S. Chamber of Commerce issued its annual International IP Index ranking the intellectual property environments in 50 of the most important economies. The 2018 edition saw the United States rank #1 overall for intellectual property, as the top jurisdiction in the world broadly speaking for intellectual property protection. The 2019 edition, released February 7, 2019, again saw the U.S. maintain its dominance as the top jurisdiction in the world for intellectual property protection as a whole. In 2018, however, the U.S. sank to twelfth place in the Chamber rankings relative to patent protections. In 2019, the U.S. rose to a tie for second place. This is certainly welcome news, but it is worth mentioning that the historic lead the U.S. had as the top patent jurisdiction in the world since the early 1980s has largely been forfeited over the last decade. There is great optimism among patent owners and innovators that things are changing and will continue to improve at the USPTO under Director Iancu’s guidance. The question that remains for patent industry observers is whether the Federal Circuit will ultimately agree with what Director Iancu is doing in order to implement predictability.

IBM Calls for an End to the ‘Legal Fiction’ of Current 101 Law

This marks the final installment in my four-part interview with IBM’s Vice President and Assistant General Counsel Mark Ringes and Chief Patent Counsel Manny Schecter. I found our conversation fascinating and want to thank them both again for their time and insight. Below, we conclude with an in-depth discussion on how the U.S. patent system is affecting startups and the state of enforceability following Director Iancu’s Section 101 Guidance.