Posts Tagged: "American Axle v. Neapco"

Under U.S. trademark law and court precedent, determining whether there is a likelihood of confusion involves weighing a number of factors (13 factors to be exact), known as the “Dupont factors,” set out in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). The CCPA (Court of Customs and Patent Appeals) is a predecessor court to the Federal Circuit. As noted by the Federal Circuit, not all the DuPont factors may be relevant or of equal weight in a given case and any one of the factors may control a particular case. Under 35 U.S.C. §101, patent-eligible inventions include any process, machine, manufacture, composition of matter and any new and useful improvement thereof. There are, in addition, three judicially created exceptions to the broad recitation of Section 101: laws of nature; natural phenomena; and abstract ideas…. If the goal of Section 101 is to act as a gatekeeper, rather than a roadblock, the factors approach seems appropriate to employ in a patentability analysis.

In one of six amicus briefs filed this week in American Axle & Manufacturing v. Neapco Holdings, LLC—the closely-watched Section 101 patent eligibility case involving driveshaft automotive technology—Professors Jeffrey Lefstin and Peter Menell told the U.S. Supreme Court that the Federal Circuit’s 6-6 split decision to deny en banc rehearing in the case “mischaracterized fundamental patent principles and case law on which the modern patent system is built.” The professors added that “current § 101 jurisprudence conflates patent eligibility with the substantive requirements set forth in § 103 and § 112 and is getting more confusing by the day” and that “there is no patent law doctrine more in need of clarification.”

American Axle & Manufacturing, Inc. filed a petition for certiorari with the U.S. Supreme Court on December 28, 2020, asking it to review the Federal Circuit’s July 31, 2020 modified judgment and October 2019 panel opinion in a closely-watched Section 101 patent eligibility case involving driveshaft automotive technology. The Federal Circuit has been sharply divided by the issues presented, leading Judge Moore to refer to the original panel’s analysis as “validity goulash” and to state that the “majority’s Nothing More test, like the great American work The Raven from which it is surely borrowing, will, as in the poem, lead to insanity.”

Each year the World Intellectual Property Organization releases a report titled World Intellectual Property Indicators. The latest edition of the report, the 2019 version, is a look back on the filing statistics for 2018. The report is eye-opening and should be mandatory reading for policy makers and legislators in the United States. For the first time since 2009, the United States saw a decline in the number of patent applications filed. This remarkable statistic comes at a time when patent applications are growing in number across the rest of the world. And let’s not forget that 2009 was a time of particular economic crisis both in the United States and around the world due to the global financial crisis and Wall Street meltdown brought on by the housing market collapse.  

This assertion is a mischaracterization of Alice Corp., which never held that the intermediated settlement claims at issue in Alice Corp. were abstract because of the risk hedging claims in Bilski were abstract.  Instead, the Supreme Court stated “that there is no meaningful distinc­tion between the concept of risk hedging in Bilski and the concept of intermediated settlement at issue here” because “[b]oth are squarely within the realm of ‘abstract ideas’ as we have used that term.”  That is: the claims in Bilski and Alice Corp. were comparable only because the underlying business methods were undoubtedly long-prevalent in the business community.  To hold otherwise is to ignore the vast bulk of both the Bilski and Alice Corp. decisions.