Posts Tagged: "patent eligibility"

The Case for Patenting AI: U.S. Patent Laws Better Get Smart or Get Left Behind

The idea of patented inventions brings to mind machines fully realized – flying contraptions and engines with gears and pistons operating in coherent symphony. When it comes to artificial intelligence (AI), there are no contraptions, no gears, no pistons, and in a lot of cases, no machines. AI inventors sound much more like philosophers theorizing about machines, rather than mechanics describing a machine. They use phrases like “predictive model” and “complexity module” that evoke little to no imagery or association with practical life whatsoever. The AI inventor’s ways are antithetical to the principles of patent writing, where inventions are described in terms of what does what, why, how, and how often.

Inventor Asks SCOTUS to Consider Patent Eligibility Again, Distinguishing Case from American Axle

Despite the U.S. Supreme Court’s rejection of the petition in American Axle v. Neapco just a few days earlier, inventor David Tropp on July 5 again asked the Court to unravel U.S. patent eligibility law. Tropp, who owns two patents relating to luggage lock technology that enables airport screening of luggage while still allowing the bags to remain locked, is asking the Court to answer the question: “Whether the claims at issue in Tropp’s patents reciting physical rather than computer-processing steps are patent-eligible under 35 U.S.C. § 101, as interpreted in Alice Corporation Pty v. CLS Bank International, 573 U.S. 208 (2014).”

It’s Time to Give Up on the Charade of U.S. Patent Protection: Most Patents are Now Officially Invalid under American Axle

Last week, the Supreme Court refused certiorari in yet another patent eligibility appeal. I’ve lost count as to how many times the Court has refused to provide clarity to the fundamental question of patent eligibility since it last muddied the waters in Alice back in 2014. I stopped counting several years ago, when the number of petitions—pleas begging for help really—crossed over 50. But the petition in American Axle was supposed to be different. Yes, the Federal Circuit has been hopelessly, and helplessly, split for years—a division and impotence of their own making. In American Axle the self-castrated Federal Circuit seemed to believe the Supreme Court modern quartet of patent eligibility cases renders nothing of importance or value patent eligible. In fact, the Federal Circuit actually ruled that a drive shaft is not patent eligible because the operation of the drive shaft fundamentally relies on Hooke’s law.

Will Dobbs Cure the Plague of Patent Eligibility Nonsense?

For anyone surprised about the Supreme Court refusing certiorari in the America Axle v. Neapco case after the Department of Justice (DOJ) (aided by the Solicitor’s Office of the U.S. Patent and Trademark Office [USPTO]) submitted its brief for the Supreme Court’s review, the question arises: why would anyone be surprised? The brief at issue is garbage, and one wonders what exactly its purpose was.

To save time for concerned readers, the DOJ’s brief may be summarized as follows: (1) a bunch of decisions were made on patent eligibility by the Supreme Court over the last 50 years; (2) the Federal Circuit is divided on the exceptions to patent eligibility; and (3) the Solicitor would like clarification as to what is abstract and what is an inventive concept, but not if it involves evidence. That is, the DOJ and PTO now demand more subjective theory on Alice-Mayo while deliberately eschewing any objective basis for the test despite the fact that the claims in Bilski, Alice, and Mayo were considered abstract based on evidence in the record.

American Axle Denied: Patent Stakeholders Sound Off on SCOTUS’ Refusal to Deal with Eligibility

As we’re all aware by now, the U.S. Supreme Court denied the petition in American Axle & Mfg., Inc. v. Neapco Holdings LLC late last week, in its last Orders List of the term. This leaves it up to Congress and the U.S. Patent and Trademark Office (USPTO) to restore any semblance of clarity on U.S. patent eligibility law for now. In a statement sent to IPWatchdog following the denial, the U.S. Patent and Trademark Office said it is “committed to making every effort to ensure that the U.S. patent system is as clear and consistent as possible.” Whether Congress will take eligibility up again remains an open question.

Patently Strategic Podcast: Fortifying Life Science Patents

The life sciences are currently facing at least two major plagues in our patent world. The first is that many life science innovations have been deemed ineligible in terms of patentable subject matter. In other words, the courts and the patent office believe that the patent laws are not meant to protect these innovations. The second plague is that the courts believe that many life science patents are not enabled. In other words, they are not described in sufficient detail to enable one of skill in the art to make and use the invention.

SCOTUS Kicks Patent Eligibility Cases to the Curb in Last Move of the Term

The U.S. Supreme Court has denied certiorari in American Axle v. Neapco Holdings, Inc., leaving it up to Congress and the U.S. Patent and Trademark Office (USPTO) to restore any semblance of clarity on U.S. patent eligibility law for now. Many expected that the Court would grant the petition after the U.S. Solicitor General in May recommended granting review. The SG’s brief said that inventions like the one at issue in American Axle have “[h]istorically…long been viewed as paradigmatic examples of the ‘arts’ or ‘processes’ that may receive patent protection if other statutory criteria are satisfied” and that the U.S. Court of Appeals for the Federal Circuit “erred in reading this Court’s precedents to dictate a contrary conclusion.”

USPTO Report Underscores Split on State of U.S. Patent Eligibility Jurisprudence

The U.S. Patent and Trademark Office (USPTO) has published its study on patent eligibility jurisprudence in response to a March 2021 request from Senators Thom Tillis (R-NC), Mazie Hirono (D-HI), Tom Cotton (R-AR) and Chris Coons (D-DE). The study, titled “Patent eligible subject matter: Public views on the current jurisprudence in the United States,” is based on more than 140 comments received following a USPTO request of July 9, 2021, and unsurprisingly concluded that many (mostly larger) high-tech and computer-related companies like the current state of the law; life sciences, startups and SMEs do not; but everyone agrees that consistency, clarity and predictability are needed. The study did not make any recommendations, and indicated that the Office will be continuing to solicit feedback via listening sessions and written comments and that it is also broadening the scope of stakeholders it reaches out to.

Conflicting Precedent for the Supreme Court in American Axle

The U.S. Department of Justice is encouraging the Supreme Court to grant certiorari to American Axle to clarify U.S. patent eligibility law. Thus, it appears that the chances are better than ever for this issue to get some much-needed attention…. After more than one year of waiting, the Justice Department filed their amicus brief on May 24, 2022. The Solicitor unequivocally stated that the Federal Circuit’s holding that the ‘911 claims are patent ineligible “is incorrect,” and that the appellate decision reflects “substantial uncertainty about the proper application of Section 101.” The Solicitor also noted that the Alice two-part test for patent eligibility enunciated by the Supreme Court in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208 (2014), has produced confusion in lower courts, and has “fractured” the Federal Circuit. (See Solicitor’s brief at page 19). The Solicitor also acknowledged the admitted difficulty for the U.S. Patent and Trademark Office (USPTO), inventors, businesses, and other patent stakeholders, in applying the Supreme Court’s precedents consistently with regard to patent eligibility under Section 101. The Solicitor urged that the Section 101 inquiry be guided by historical practice and judicial precedent. But Supreme Court precedent appears to be irreconcilable.

IP Practitioners Speak Out on the U.S. Government’s Approach in American Axle Brief

Last week, the United States Solicitor General recommended granting review in American Axle & Manufacturing v. Neapco Holdings, a case many in the patent community hope will provide clarity on U.S. patent eligibility law. IPWatchdog asked stakeholders to weigh in on whether the SG took the right approach and what this latest development means for the fate of U.S. patent eligibility. Here is what they had to say.

IPWatchdog’s Patent Litigation Masters: Waving a Wand to Fix U.S. Patent Litigation

Day two of IPWatchdog’s Patent Litigation Masters Program yesterday included panels on IP Finance, Mega Verdicts in Patent Litigation, Expert Witnesses and the Fintiv Saga. During the latter panel, former U.S. Court of Appeals for the Federal Circuit Judge Kathleen O’Malley joined other speakers to discuss the effects of the Patent Trial and Appeal Board’s (PTAB’s) Fintiv decision, a controversial precedential PTAB opinion that outlined factors for the Board to consider in choosing whether to discretionarily deny institution of an inter partes review (IPR) proceeding. Todd Walters of Buchanan Ingersoll & Rooney presented statistics showing that the rate of denials due to Fintiv has recently fallen off a cliff.

Solicitor General Tells SCOTUS CAFC Got it Wrong in American Axle, Recommends Granting

The United States Solicitor General has recommended granting review in American Axle & Manufacturing v. Neapco Holdings, a case many in the patent community hope will provide clarity on U.S. patent eligibility law. The Supreme Court asked for the views of the Solicitor General in May of 2021 and the response has been highly anticipated. The SG’s brief says that inventions like the one at issue in American Axle have “[h]istorically…long been viewed as paradigmatic examples of the ‘arts’ or ‘processes’ that may receive patent protection if other statutory criteria are satisfied” and that the U.S. Court of Appeals for the Federal Circuit “erred in reading this Court’s precedents to dictate a contrary conclusion.”

Day One of Patent Litigation Masters: We Must Become Ambassadors for the U.S. Patent System Again

Speakers on day one of IPWatchdog’s Patent Litigation Masters program acknowledged that it’s easy for patent owners to become frustrated and disconsolate about how far the pendulum has swung away from encouraging effective patent protection but urged attendees to continue speaking up. As program sponsor and co-chair David Henry of Gray Reed put it, “I think we all have to become ambassadors for the patent system.” Henry spoke Monday on a panel about the U.S. Court of Appeals for the Federal Circuit’s recent habit of granting petitions for writ of mandamus to order Judge Alan Albright of the U.S. District Court for the Western District of Texas to transfer cases out of his court, largely to the U.S. District Court for the Northern District of California. Panelists speculated about the motivation for this focus on both the Eastern and Western Districts of Texas, with several agreeing that at least part of the trend is rooted in anti-patent sentiment. “Every time there’s a favorable forum for patentees, it gets harder to get into,” Wendy Verlander of Verlander LLP said.

SCOTUS IP Update: Status of the Top Patent Cases Before the High Court This Term

With about one month left in the U.S. Supreme Court’s current term, several petitions for writ of certiorari in patent cases being appealed from the U.S. Court of Appeals for the Federal Circuit remain pending in front of the nation’s highest court. Several of these petitions raise important questions on Section 101 patent eligibility jurisprudence in the wake of Alice Corp. v. CLS Bank International, a subject which the Supreme Court has punted on dozens of times after handing out that landmark decision on the patentability of computer-implemented inventions back in 2014. With several petitions on other areas of patent law that have grown more uncertain in recent years, including Section 112 enablement issues and patent-specific preclusion doctrines, the last few weeks of the Supreme Court’s term could presage coming changes to U.S. patent law, while recent cert denials indicate other areas of patent law that are of no concern to the nation’s highest court.

In re Killian: Harvey the Rabbit Comes to the Federal Circuit

In 1950, Jimmy Stewart starred in the iconic movie “Harvey,” which is the story of Elwood P. Dowd, an affable but eccentric man who pals around with an invisible 6’4” rabbit with an affection for martinis and that has the magical power to stop time. In the end of the movie, the viewer is left to believe that some level of insanity in people is good, and that there is some possibility that Harvey actually exists in some form. Fast forward to May 5, 2022. While many Americans were celebrating Cinco de Mayo, the Federal Circuit was asked to address an entity far more fictitious and unbelievable than Harvey the Rabbit, known as “inventive concept,” during oral hearing in In re Killian (Appeal No. 21-2113).