Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:
- an article discussing a “bill introduced Tuesday by Sen. Thom Tillis, R-N.C., aimed at setting more precise rules on which inventions are eligible for patents”;
- another article explaining how the bill “clearly is intended to overrule” the Supreme Court’s recent cases addressing patent eligibility;
- a blog post addressing how “the PTO [will] be revisiting the test for patent subject matter eligibility”; and
- an article discussing a case before the Federal Circuit that involves “a shoemaking process with major implications for both the industry and patent law.”
Ryan Davis filed an article with Law360 discussing a “bill introduced Tuesday by Sen. Thom Tillis, R-N.C., aimed at setting more precise rules on which inventions are eligible for patents.” According to the article, experts say the bill “would add helpful clarity on some issues, but includes ambiguous language that could take years of litigation to sort out.” The article quotes former Federal Circuit Judge Kathleen O’Malley as saying that the bill “‘offers welcome guidance’ to the patent office, courts and innovators, and ‘would provide all stakeholders with greater predictability about the scope of available patent protections across all technologies.'”
Gene Quinn published an article for IPWatchdog explaining how Senator Tillis’s bill “would, at a minimum, overrule the Supreme Court’s decisions” in Myriad and Mayo. Quinn noted how the bill “attempts to put an end to judicially created exceptions to patent eligibility by saying that the only exceptions to patent eligibility would now be found within the Patent Act.” The article quotes Andrei Iancu, former Director of the U.S. Patent and Trademark Office, as saying the “bill is an important milestone in the effort to modernize our patent laws, and to clear up the confusion caused by recent jurisprudence as to what is patentable and what is not.”
Audrey A. Millemann authored a blog post for The IP Law Blog addressing how “the Director of the U.S. Patent and Trademark Office announced that the PTO would be revisiting the test for patent subject matter eligibility.” Millemann explained how, “[i]n her blog post, Director Vidal states that stakeholders with respect to U.S. patent laws agree that subject matter eligibility ‘needs to be clear, predictable, and consistently applied.'” According to Millemann, “the Director states that the PTO is revisiting its guidelines on subject matter eligibility in section 2106 and is seeking public comment by September 15, 2022.” Moreover, Millemann noted how “the PTO is involved in discussions with foreign patent offices, including in Europe, Japan, China, and Korea, to learn how other countries determine subject matter eligibility.”
Samantha Handler wrote an article for Bloomberg Law discussing how, in Nike, Inc. v. Adidas AG, “Nike wants the . . . Federal Circuit to clarify who has the ‘burden of persuasion’ to show that a patent shouldn’t have been issued when the Patent Trial and Appeal Board raises its own challenge.” According to Handler, “[h]ow the issue is decided could mean more modes of attack against patent owners during US Patent and Trademark Office ‘inter partes review’ proceedings.”