Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- a blog post arguing the Federal Circuit’s application of the judicial exceptions to patentability for software patents “has resembled less a coherent legal standard and more a series of freely-improvised opinions”;
- an article discussing a recent Federal Circuit decision holding that “composition of matter claims covering engineered cells containing DNA from two different organisms chemically spliced together are not patent-ineligible natural phenomena”;
- a blog post addressing how the repeal of 35 U.S.C. § 102(f) “left an open question that the patent bar has been debating for more than a decade: can incorrect inventorship still be raised as a defense in patent litigation?”; and
- a blog post exploring a recent Federal Circuit decision in which the court “couldn’t determine whether the plaintiff suffered a physical taking of its radio license” because the parties had not adequately briefed whether a federal statute created “a private property right.”
Michael Borella penned a blog post for Patent Docs arguing the Federal Circuit’s application of the judicial exceptions to patentability for software patents “has resembled less a coherent legal standard and more a series of freely-improvised opinions.” Borella suggests that, “[a]mong the many failings of the current U.S. patent eligibility framework under 35 U.S.C. § 101, perhaps none is more corrosive to the patent system’s basic function than the fact that the framework keeps changing.”
Robert Frederickson wrote an article for Law360 discussing a recent Federal Circuit decision holding that “composition of matter claims covering engineered cells containing DNA from two different organisms chemically spliced together are not patent-ineligible natural phenomena.” Frederickson indicates the “Federal Circuit’s reasoning in the case is as interesting as its conclusion” because, instead of applying the “often-criticized, two-part test” for patent eligibility, the court simply asked “whether the claims were markedly different from the natural phenomenon.” For more information on the case, check out the case page in REGENXBIO Inc. v. Sarepta Therapeutics, Inc.
Dennis Crouch penned a blog post for PatentlyO addressing how the repeal of 35 U.S.C. § 102(f) “left an open question that the patent bar has been debating for more than a decade: can incorrect inventorship still be raised as a defense in patent litigation?” Crouch highlights how the Federal Circuit recently held “two patents invalid because a missing coinventor could not be located and added.” For more information on this case, check out the opinion in Fortress Iron LP v. Digger Specialties Inc.
Robert Thomas authored a blog post for inversecondemnation.com exploring a recent Federal Circuit decision in which the court “couldn’t determine whether the plaintiff suffered a physical taking of its radio license” because the parties had not adequately briefed whether a federal statute created “a private property right.” Thomas stresses that “it is important — nay, critical — in a takings case to clearly define the private property” that is “alleged to have been taken.” For more information on the case, check out the case page for Ligado Networks LLC v. United States.