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
- Stewart Says USPTO Wants Early Validity Challenges, Not Late IPRs
- Solutions for a Better Patent System | IPWatchdog Unleashed
- The Impact of Price Controls and Biologics on the Future of U.S. Pharmaceutical Innovation and Investment
- Other Barks & Bites for Friday, June 6: UK House of Lords Insists on Copyright Transparency in AI Bill; OpenAI Vows to Appeal New York Times Ruling; and Stewart Sua Sponte Orders Review of PTAB Win for TikTok
- Squires’ Responses to Senate Judiciary Committee Focus on Balance, Backlog and ‘Born Strong’ Patents