Employing a Trademark Test to Determine When a Patent is ‘Directed To’ a Section 101 Judicial Exception
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.