Patent Law Reform

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Senate/House Outline Follows USPTO’s Top-Down Approach

The USPTO released Revised Guidance on Patent Eligibility Under 35 U.S.C. § 101 back in January. The Guidelines simplified the case law by presenting a top-down approach to distill the morass of case law on abstract ideas into a list of exempted categories.

Under its new Guidleines, if a patented claim was not directed to an exempt category, the the claims passed muster. If the claim is directed to an enumerated category, a practical application analysis is then performed, and if satisfied, the claims still pass 101 scrutiny. The result is a more patent friendly, and manageable analysis….at least at the USPTO.

Since introduction of the Guidelines, however, the Courts have declined to show them deference. Yet, Congress appears poised to enact legislation to forcibly align the Courts with the agency 101 Guidelines.
Continue Reading Congress Poised to Align Courts with USPTO on 101 Reform

Subcommittee to Tackle 101?

Late last week, the Senate Judiciary Committee announced the formation of an Intellectual Property (IP) Subcommittee. The Senate Judiciary has not had an active IP Subcommittee for decades (unlike the House).

Senators Thom Tillis (R-NC) and Chris Coons (D-DE) were announced as Chairman and Ranking Member of the IP Subcommittee. You may remember these same senators conducting a closed-door meeting with larger stakeholders (Tech and Bio/Pharma) last December on the topic of patent subject matter eligibility (35 U.S.C. § 101). On the heels of the USPTO’s revised patent eligibility guidelines, it appears that the stars may finally be aligning for meaningful 101 reform.
Continue Reading Senate Judiciary Leaders Resurrect Long Dormant IP Subcommittee

USPTO & Congress to Tackle 101

As we close out 2018, there may be some hope on the horizon for those confounded by the current state of patent eligibility determinations under 35 U.S.C. § 101.

On the legislative side, Senators Coons (D-Del) and Thom Tillis (R-N.C.) will host a closed-door meeting tomorrow, Dec. 12th, to…

Upcoming Event in DC to Explore a Host of Hot Topic Issues

One of the more cutting edge CLE events of the year is IAM’s Patent Law & Policy. The program explores the overlap in changing legal and political climates, especially relevant in a year of mid-term elections.

The program drills down to the…

Copycat House Bill to Generate Positive Buzz?

Today, Representative Steve Stivers (R-OH) and Representative Bill Foster (D-IL) introduced H.R. 5340, the so-called “Support Technology & Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patent Act.” The bill (here) is a carbon copy of the Senate Bill (save some cosmetic changes). On the…

Preserving Access to Cost Effective Drugs (PACED) Act

Senator Tom Cotton (R-Arkansas) and Senator Claire McCaskill (D-Missouri) along with Senators Pat Toomey (R-Pennsylvania), Joni Ernst (R-Iowa), David Perdue (R-Georgia) introduced the Preserving Access to Cost Effective Drugs (PACED) Act (S.2514), to “restore the power of the Patent and Trademark Office and federal courts, and the…

Bill Would Effectively End PTAB

The STRONGER (Support Technology & Research for Our Nation’s Growth and Economic Resilience) Patents Act was unveiled in the U.S. Senate this week.  This is the newest incarnation of a previously stalled bill known as the “STRONG Patent Act of 2015.”  The new bill, like its predecessor, proposes significant modifications to the patentability trial mechanisms of America Invents Act (AIA).  These modifications, if adopted, would for all practical purposes end AIA trial proceedings at the Patent Trial & Appeal Board (PTAB) — the apparent goal of the organizations backing this legislative effort.  

Notably, this same agenda prevented the 2015 bill from gaining any real traction. While the new bill does include some improved proposals for amending claim at the PTAB, oddly, it also doubles-down on its anti-PTAB agenda.

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Continue Reading Senate Bill Seeks to Thwart AIA Trials

Unified Patents’ Offers First Quantitative Study of TC Heartland Impact 

Since TC Heartland v. LLC D/B/A Heartland Food Products Group V. Kraft Foods Group Brands LLC. made clear that patent venue is not coextensive with personal jurisdiction, debate has swirled as to the impact of this case on the Eastern District of Texas (EDTX).  Of course, the focus is properly on the EDTX as it is the district that effectively broke the system, as I and others made clear to the Supreme Court (Unified Patents amicus). But, little if any of the recent speculation has looked at hard numbers, until now.
Continue Reading TC HeartLand Fallout: 1000 Fewer EDTX Filings in 2017

Key Administrative Law Doctrine on the Congressional Chopping Block & Onerous Rule Hurdles

As pointed out in yesterday’s Top 5 PTAB Trial Developments of 2016, the Administrative Procedure Act (APA) is the constitution of Article I courts. In its 70 years of existence, the APA has never been modified. Yet, over time, common law developments have been intermingled with APA considerations — none more prominent than the “Chevron Doctrine.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). This judge made doctrine stands for the proposition that where there is silence or ambiguity in a statute conveying agency authority or action, that courts should apply deference to reasonable agency interpretations. Critics of Chevron argue that it cannot be reconciled with the APA, and has led to a highly inconsistent body of case law.

Politicians argue that Chevron allows regulatory agencies to create law independent of judicial review, and leads to an unwarranted expansion of costly bureaucracy.

Today, the House will begin to consider HR. 5, which not only proposes to eliminate the Chevron Doctrine by amending the APA to expressly exclude it, but also proposes to heap a boatload of additional regulatory roadblocks to the promulgation of agency rules. …
Continue Reading Chevron Deference for AIA Trial Matters Trumped?