Hi there! No, this week wasn’t quite as eventful as last week. (If you missed the big patent news, check out last week’s roundup.) But we still have some news you don’t want to miss.
It’s important to understand the larger point of President Obama’s executive actions. The president has correctly identified software patents as the main fuel for the patent An entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms. litigation wildfire. And he has proposed a reasonable solution: directing the Patent and Trademark Office to focus on limiting patents to what someone actually invented.
That refers to the functional claiming fix, which he explained in depth in a post last week. In a post yesterday, Matt Levy did a deep dive into another desirable reform, the expansion of the A covered business method review is an adversarial procedure created by the AIA for challenging patents, similar to an IPR. Like an IPR, the parties argue before an Administrative Patent Judge, not a patent examiner and the challenger must show a reasonable likelihood of successfully invalidating one claim before the PTAB will agree to grant a petition for review. Unlike an IPR, a CBM can More program, found in Senator Schumer’s Patent Quality Improvement Act, and also in the President’s proposal. Senator Schumer also had a great op-ed in the Wall Street Journal (paywall alert, sorry!) yesterday, where he explained the benefits of expanding CBM review:
If a An entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms. knows he can no longer trap a defendant in expensive and lengthy litigation, his interest in the suit will diminish substantially. And American businesses can get back to the work of innovation and growth, rather than frivolous litigation defense.
This week, Matt Levy also did a line-by-line takedown of an op-ed in the Boston Globe by former Senator John Sununu, debunking all of his classic pro-troll arguments, like: “Patents Are a Constitutional Right”, “Sure, There’s Abusive Litigation, but Reform Is Hard. And Also Trial Lawyers!”, “Look! Over There!”, “But Universities!”, and “What About Individual Inventors?”
Also, although it’s an area of patents we don’t often cover on Patent Progress, I just wanted to point out that the Supreme Court’s Myriad decision came out yesterday, and SCOTUS unanimously held human genes aren’t Eligible to be patented. To be patent-eligible, an invention must fall into the categories listed in 35 U.S.C. § 101 (i.e., process, machine, manufacture, or composition of matter) and cannot be an abstract idea or a law of nature.. A few interesting excerpts are below:
To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention.
Groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the §101 inquiry.
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