Amicus Briefing May Help Get SCOTUS Attention on Growing 101 Morass
In one of the more closely-watched cases involving patent eligibility, American Axle v. Neapco, Judge Moore recently highlighted how “bitterly divided” the Federal Circuit is on patent eligibility, and predicted with a “reasonable probability” that the Supreme Court will step in and force the Federal Circuit to reverse course on issues of eligibility.
American Axle—involving driveline propeller shafts for automotive engines—highlights the sharp divide in how various Federal Circuit panels apply the Supreme Court’s eligibility guidelines and the resulting uncertainty that inventors, patent owners, and accused infringers face in determining whether inventions are eligible under § 101 as interpreted by the Supreme Court’s ruling in Alice v. CLS Bank. Indeed, in an earlier decision denying rehearing en banc, a sharply divided Court issued two concurrences justifying the panel’s application of § 101 law and three separate dissents urging the full court to take up the issue. Understanding the differences in opinion here may help patent practitioners navigate tumultuous § 101 issues until the Supreme Court weighs in again. American Axle petitioned the Supreme Court for a writ of certiorari on December 20, 2020. The petition calls for clarity on § 101 and may be taken up in conference shortly.
The Court has shown some interest in the case, soliciting views of the government. Amicus support has also followed, including a brief filed by Senators Tillis and Coons, and former PTO Director David Kappos. Consideration of American Axle is the quickest path to some form of clarity for patent subject matter eligibility disputes.