is a litigation associate and registered patent attorney resident in Fried Frank‘s Washington, DC office. Ms. Whidby’s practice is concentrated in the field of intellectual property, including the drafting of patent opinions, providing pre-litigation counseling, and engaging in patent litigation. She has extensive experience in litigating matters relating to nuclear and mechanical technologies, as well as the chemical, pharmaceutical and biotechnological fields. Ms. Whidby has assisted in several trials concerning intellectual property issues, including a recent international arbitration concerning a patent related to night vision technology, a US District Court trial concerning a patent related to coding of digital data, and a US District Court trial over the validity of a patent related to contact lens materials. She has also represented clients in patent-related disputes before the Patent Trial and Appeals Board, Virginia state court, the US Court of Appeals for the Federal Circuit, and the US Supreme Court.
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.