is a litigation partner resident in Fried Frank‘s Washington, DC office. Mr. DeFosse’s practice focuses on intellectual property litigation and counseling involving a wide range of product areas, including automotive technologies, consumer electronics, telecommunications, website design, cloud computing, and medical devices. Mr. DeFosse regularly appears in federal courts throughout the United States, including the US District Courts for the Eastern District of Texas, the Eastern District of Virginia, the District of Delaware, the Northern and Central Districts of California, and the Northern District of Illinois. Mr. DeFosse also regularly appears before the Patent Trial and Appeal Board in connection with post-grant review proceedings.
The waters surrounding Section 101 of the Patent Act are as muddied as they come. The statute sets forth only in broad strokes what inventions are patentable, leaving it to the courts to create an implied exception to patentability for laws of nature, natural phenomena, and abstract ideas. It has been difficult for lower courts to determine whether an invention falls within one of these excluded categories, and the U.S. Supreme Court has refused to provide a definition of what constitutes an “abstract idea.” Nonetheless, the Court in recent years has laid several foundation stones in Bilski, Mayo, Myriad and Alice for a bridge over these troubled waters. Trying to build upon these, the Federal Circuit issued two recent opinions dealing with Section 101: Enfish, LLC v. Microsoft Corporation and In re: TLI Communications LLC Patent Litigation. However, these decisions only create more confusion and cannot provide a safe means of passage over the turbulent waters of patent eligibility.