Posts Tagged: "patentable subject matter"

Presenting the Evidence for Patent Eligibility Reform: Part I – Consensus from Patent Law Experts

Patent eligibility law in the United States is in a state of disarray that has led to inconsistent case decisions, deep uncertainty in the innovative, investment and legal communities, and unpredictable outcomes in patent prosecution and litigation. These facts have been extensively documented in multiple sources, including: the statements of all 12 active judges of the nation’s only patent court, the U.S. Court of Appeals for the Federal Circuit (confirmed prior to October 2021); the findings and reports of the Executive branch across all recent Administrations; the bi-partisan conclusions of Congressional committees; a robust body of academic studies; and at least forty separate witness statements at the 2019 hearings on this issue before the Senate Committee on the Judiciary Subcommittee on IP, including statements from advocates that oppose Section 101 reforms.

With Congress and Courts at Standstill, IPWatchdog LIVE 2022 Panel Says Upcoming ‘Action’ on 101 Will Be at USPTO

During a session titled “Politics, Policy and Legislation” on Monday at IPWatchdog LIVE 2022, three panelists who have each played a role in shaping patent law over the years discussed recent developments in patent eligibility reform, and congressional interest in so-called patent thickets being fueled by continuation patents and other topics.

Call for Amici: Whatever You Think of In re Killian, Patent Owners Deserve Clarity

[Editor’s Note: Bud Mathis is counsel for Killian]. The average attorney reading the recent opinion penned by Judge Chen and joined by Judges Taranto and Clevenger in In re Killian (Appeal 21-2113) might agree with Judge Chen’s conclusion that, “[w]hile there are close cases under the Alice/Mayo standard, the ’042 application does not present such a close case[.]” To this statement, I, Killian’s counsel, respond that, every time any claim comes close, the Federal Circuit engages in a predictable fiction in which the court: (1) announces that a claim is directed to “a something” described in such a broad and vague manner that “the something” barely resembles the claim at issue, (2) declares that “the something” that barely resembles the claim at issue is “abstract” based on no evidence or analysis, and then (3) declares that the remaining claim limitations lack an inventive concept.

Eliminating the Jargon: An Alternative Proposal for Section 101 Reform

On August 3, Senator Thom Tillis (R-NC) introduced the Patent Eligibility Restoration Act of 2022, S.4734, which would amend the U.S. Patent Act to clarify the patent eligibility of certain technologies under 35 U.S.C. Section 101. Few would disagree that the current state of eligibility jurisprudence is in “abysmal shambles”, and recognizing that U.S. eligibility law needs changing comes from both side of the aisle, as Senator Chris Coons (D-DE) has long questioned the court-made exceptions to patent eligibility….. I have extensively followed the developments of 101 jurisprudence in the courts and the efforts of those in Congress to enact statutory changes to Section 101. In so doing, I have contemplated how Section 101 could be improved, and thus my proposal regarding how to revise the statutory language follows.

Tillis Addresses Criticism of His Eligibility Reform Bill, Warns WD of TX Not to Backtrack on Standing Order

Senator Thom Tillis (R-NC) has been perhaps the most active and passionate Congress person when it comes to intellectual property (IP) rights, and patents specifically, in recent history. In early August, he released the first draft of the Patent Eligibility Restoration Act of 2022, which if enacted would abrogate the Supreme Court’s decisions in Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S.Ct. 2107 (2013) and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.Ct. 1289 (2012). He has also been closely involved with oversight of the U.S. Patent and Trademark Office (USPTO) on topics such as patent quality and has written numerous letters to the Biden Administration on issues including the waiver of IP obligations under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, the theft of U.S. IP by Chinese companies, and more. While he seemed fairly exasperated by the end of his last attempt at eligibility reform in 2019, he explains below that the Supreme Court’s refusal to fix the problem by denying the American Axle case inspired him to revive his efforts.