Software-Related U.S. Patent Grants in 2022 Remained Steady While Chinese Software Patents Rose 8%

As an update to my previous posts from 2017, 2019, 2020, March 2021, August 2021, and 2022, it has now been almost nine years since the U.S. Supreme Court’s 2014 Alice Corp. v. CLS Bank decision. Yet the debate still rages over when a software (or computer-implemented) claim is patentable versus being simply an abstract idea “free to all men and reserved exclusively to none” (as eloquently phrased over 74 years ago by then-Supreme Court Justice Douglas in Funk Bros. Seed Co. v. Kalo Inoculant Co.). Further, it has been 12 years since famed venture capitalist Marc Andreessen wrote the influential and often-quoted op-ed piece in the Wall Street Journal titled “Why Software Is Eating the World.” Today, the digital transformation where software is “eating the world” is undeniable. Artificial Intelligence (AI), the Metaverse, Web3, cloud, gene editing, autonomous driving, quantum computing, and “green tech” dominate the technology news headlines and technology trend forecasts – all heavily reliant on software-related innovation – [Forbes] [Gartner] [World Economic Forum], but we are still without concrete guidelines for software-related patenting.

Practitioners Mostly Agree Amgen Won’t Be a Sea Change, But Some Predict Grim Consequences

Yesterday’s oral argument in Amgen v. Sanofi was long-awaited and closely watched by many in the patent community. The Justices seemed skeptical that the U.S. Court of Appeals for the Federal Circuit’s (CAFC’s) decision was a significant departure from existing law, and they repeatedly questioned whether this particular case can be resolved on the facts and by employing current legal tests. During oral argument, Sanofi’s counsel, Paul Clement, admitted that the Court’s affirmance of the CAFC decision could result in the inability to functionally claim a genus in this particular area of antibody science, but said that’s ok because “functional genus claims are terrible. I think they retard the science.”

China Gains on Top Filers at European Patent Office

U.S. companies and inventors still filed more patent applications with the European Patent Office (EPO) than any other country, according to its Patent Index 2022, which was released today. The index showed that U.S. patent applications numbered 48,088, a 2.9% increase from 2021. However, China’s filings jumped by 15.1% over 2021, keeping it in fourth place out of the top five countries of origin for applications and narrowing the gap between it and Japan, the number three filer.

Clause 8 Podcast: Bob Stoll on Implementing AIA and Being Part of the First Family of IP

The patent community often treats the Director of the United States Patent and Trademark Office (USPTO) as the person responsible for setting and changing an administration’s patent policy. On this episode of the Clause 8 podcast, former USPTO Commissioner for Patents, Robert Stoll, says that’s a mistake. “The autonomy of the Director is not what people think it is on the outside who are not familiar with it,” he emphasizes. “It’s not your own voice. Any Director of the PTO has to work in their administration and carry forward what becomes the policy of the President. So, they’re not free hands with respect to implementing their ideas, and you just have to recognize that.”

The Truth Leaks Out: Justices Struggle with the Science, Sanofi Welcomes End to Functional Genus Claims in Amgen Oral Arguments

The U.S. Supreme Court heard three separate arguments today in Amgen v. Sanofi, a case that even Sanofi’s counsel agreed could effectively wipe out patents involving genus claims if the Court sides with Sanofi, or—as counsel for Sanofi and the Solicitor General’s Office suggested the Court could do—if it were to dismiss the case as improvidently granted.

Centripetal Files Mandamus Petition Following PTAB’s Retaliatory Sanctions for Questioning APJ Financial Interests

Last week, cyber threat intelligence firm Centripetal Networks filed a petition  with the U.S. Court of Appeals for the Federal Circuit seeking mandamus relief from the Patent Trial and Appeal Board’s (PTAB) “extraordinary departure from basic elements of due process” during inter partes review (IPR) proceedings challenging Centripetal’s patent claims. If left unremedied, Centripetal argues to the Federal Circuit that its own treatment at the hands of the PTAB “sen[ds] a message to the entire patent bar: Any attempt to hold APJs to standards comparable to those of Article III judges [will] be met with sanctions.”

This Week in Washington IP: USPTO Hears from Women Excelling in the Technology Industry; Germany and the United States’ Innovation Future; and the Role of Pharmacy Benefit Managers in the Prescription Drug Supply Chain

This week in Washington IP news, the House Subcommittee on Economic Growth, Tax, and Capital Access examines how well creditors are able to identify small businesses that are eligible for additional capital. Elsewhere, the United States Patent and Trademark Office (USPTO) hosts the third event of the 2023 Women’s Entrepreneurship Symposium. Also, the Information Technology and Innovation Foundation (ITIF) discusses the future of manufacturing innovation in Germany and the United States.

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