Posts Tagged: "patent eligibility"

VoIP-Pal Implores Full CAFC to Review Whether a Rule 12 Motion Based on Section 101 Can Be Decided Before Claim Construction

Last week, VoIP-Pal.com, Inc. filed a combined petition for panel rehearing and rehearing en banc with the U.S. Court of Appeals for the Federal Circuit (CAFC) asking for review of a Rule 36 judgment in VoIP-Pal.Com, Inc. v. Twitter, Inc. That judgment affirmed a decision of the U.S. District Court for the Northern District of California that resolved a claim construction dispute in the context of a motion to dismiss under Section 101 as per Rule 12(b)(6) of the Federal Rules of Civil Procedure prior to claim construction. In the petition, VoIP-Pal asserted that the Rule 36 judgment conflicted with CAFC precedent and “the time has come for this court to reconsider whether a Rule 12 motion based on §101 should be decided before claim construction.”

Time to Fix U.S. Innovation Policy to Ensure We’re Prepared for the Next Pandemic

“The COVID-19 crisis has once more highlighted the need for incentivizing investment and innovation—and thus, for patent laws that duly “promote” and protect such “progress,” precisely as our Founders envisioned,” writes Chief Judge Paul Michel, now retired from the Federal Circuit. As he so often is, Judge Michel is absolutely correct. Many are asking why testing for the coronavirus that causes COVID-19 has been slow to roll out, and why tests in many countries are inaccurate. Those familiar with U.S. patent laws understand the problem. There has been a deemphasis on medical diagnostics in America as the result of a series of Supreme Court and Federal Circuit rulings, coupled with Congressional inaction.

Rently Asks Full Federal Circuit to Rehear Lockbox Patent Eligibility Case

Last week, Consumer 2.0, Inc. d/b/a Rently filed a combined petition for panel rehearing and rehearing en banc asking the U.S. Court of Appeals for the Federal Circuit (CAFC) to review its recent Rule 36 judgment affirming a decision of the United States District Court for the Eastern District of Virginia that Rently’s patent claims were ineligible. The district court found the claims, which were directed to “the use of lockboxes able to recognize time-limited codes and coordination of those codes with software to facilitate secure automated entry”, ineligible for patent protection under 35 U.S.C. § 101. Among other arguments, Rently noted that the case raised multiple issues that required en banc review, including whether unconventionality alone is sufficient to satisfy the inventive concept requirement under Section 101, whether the determination of unconventionality is one of law or fact, and whether a court is permitted to conduct a quasi-Section 103 analysis of obviousness without the protections against hindsight bias.

A House Divided: Is the PTAB Ignoring the USPTO’s Section 101 Guidance?

The year 2019 was supposed to be when subject matter eligibility examination at the USPTO got better. First, the USPTO published Revised Patent Subject Matter Eligibility Guidance in January 2019 meant to address “how to apply the U.S. Supreme Court’s [Alice] framework for evaluating eligibility [under Section 101].” 84 Fed. Reg. 50 (Jan. 7, 2019) (“PEG”). Then, the USPTO doubled down with the October 2019 Subject Matter Eligibility update (“October Update”). In contemporary parlance, you might say that 2019 was supposed to be the year that the USPTO flattened the Section 101 rejection curve. There is promising evidence that the 2019 Guidance has reduced Section 101 rejections during prosecution before USPTO examiners. See Update on 101 Rejections at the USPTO: Prospects for Computer-Related Applications Continue to Improve Post-Guidance. Unfortunately, the Patent Trial and Appeal Board (PTAB) does not seem to have received the memo. While the PTAB routinely refers to the 2019 Guidance in decisions on Section 101 rejections, there is at least one critical requirement of the 2019 Guidance that the PTAB appears to ignore—the requirement that an examiner must show every claim, individually, is ineligible.

Pandemics and the Need for U.S. Patent Laws That ‘Promote … Progress’ and Invention: The Federal Circuit, En Banc, Can Fix This

The COVID-19 crisis has once more highlighted the need for incentivizing investment and innovation—and thus, for patent laws that duly “promote” and protect such “progress,” precisely as our Founders envisioned. See U.S. Const., Art. I., § 8, cl. 8. Indeed, those patent-based incentives over the years have helped produce life-saving medicines, tests, treatments, and cures; once-unimaginable computer technology, robotics, and nanotechnology; LASIK eye-surgery and cochlear implants; personal satellite-based navigation systems; handheld devices seemingly straight out of Star Trek; 3-D printer technology; and much, much more. Nevertheless, a series of judicial rulings over the past 15 years have steadily eroded U.S. patent protections. Consequently, once-innovative companies, including major innovative pharmaceutical companies, have divested in R&D, and investors more generally have diverted funding to non-inventive areas (like entertainment) or to countries (like China) whose patent laws offer protections more favorable than U.S. law. American innovation has fallen accordingly.