Since the Supreme Court’s Alice decision in 2014, the Judiciary’s development of 101 law has caused such an upheaval, Congress may need to intervene. In a July 2018 joint position paper entitled “Congress Must Remedy Uncertainty in 35 U.S.C. §101 and Return Balance to the U.S. Patent System,” the American Bar Association’s IP Law section, the IP Owner’s Association, and the American Intellectual Property Law Association contended the “Supreme Court’s jurisprudence has injected significant ambiguity into the eligibility determination . . . .” and there is now “[u]ncertainty about what types of inventions qualify at the most basic level for patenting.” This ambiguity, however, may be a blessing in disguise. By creating demand for Congress’ intervention, we have an opportunity to change course from the patent policy that has resulted in this mess. But to turn a corner, Congress needs to first understand the shortcomings of its and the Judiciary’s fundamental assumptions that have created this situation. For more than a decade, both Congress and the Judiciary have approached patent policy from a foundational presumption: the inherent problem with our patent system stems from a bad actor.Under a single-minded bad actor presumption, the Judiciary and Congress have framed our patent policy to increase roadblocks for this bad actor, to prevent it from taking advantage of the system. But this presumption has spawned a policy that is contrary to economic principles, and it has systematically weakened and undermined the U.S. patent system. Even if Congress manages to fix 101 law, if
Recent Posts
- Increasing Volume of Patent Deals Could Signal Bounce in Patent Marketplace | IPWatchdog Unleashed
- How the USPTO Could Make a Permanent After-Final Consideration Program Work
- Other Barks and Bites for Friday, June 27: EGC Says ‘NERO CHAMPAGNE’ Unduly Exploits Protected Designation of Origin; SCOTUS Seeks SG Views on Skinny Label Issues in Hikma; and a Big Week for Copyrights and AI
- PTAB Designates Informative Director Review Decision Vacating Institution of Two Petitions Challenging Same Claims
- Stewart Grants Discretionary Denial Due to Patent Being Dismissed From Litigation