Patent Eligibility Restoration Act – It's Back (Again)
Last week, Sens. Thom Tillis (R-N.C.) and Chris Coons (D-Del.) and Reps. Kevin Kiley (R-Calif.) and Scott Peters (D-Calif.) reintroduced the Patent Eligibility Restoration Act (PERA), a bill Sens. Tillis and Coons first floated a couple of years ago.
If passed, PERA would eliminate all judicial exceptions to patent eligibility, and patent eligibility would be determined without consideration of Sections 102, 103 or 112. My key takeaway from the legislation was that Sens. Tillis and Coons were trying to walk the line of bringing clarity to patent eligibility while incorporating at least some of the judicial exceptions (e.g., pure mental processes) in the legislation. Read my initial take on PERA here.
Sens. Tillis and Coons and Reps. Kiley and Peters all made statements:
Tills: "Clear, reliable, and predictable patent rights are imperative to enable investments in the broad array of innovative technologies that are critical to the economic and global competitiveness of the United States, and to ensuring the national security of our great country."
Coons: "When American innovators know their ideas are eligible for patent protection, they take the risks that push us into the future – whether that's the next medical test or the latest AI technology. PERA restores clarity to the law on what can be patented and what cannot – guidance that federal courts have been requesting for years and that the Supreme Court has refused to provide."
Kiley: "American innovators have been at a disadvantage in recent years because of the U.S. patent system. Convoluted Supreme Court rulings and tests on subject matter eligibility have made it increasingly difficult for inventors to receive patents, leading to foreign companies overtaking our own."
Peters: "For more than two centuries, a U.S. patent has guaranteed inventions will be protected from theft, helping the U.S. become the innovation capital of the world. San Diego, in particular, is the proud home of a thriving life sciences and technology ecosystem that has benefited from these protections. Over the last 15 years, however, several Supreme Court decisions have created confusion about what exactly is eligible for a patent. Innovators, consumers, and even the judges who adjudicate patent law have called on Congress to provide clarity on what can be patented."
It's hard to say whether the reintroduction of PERA is a genuine attempt to affect patent eligibility law or mostly symbolic.
Read the full press release, and here is video of the PERA reintroduction event.
Department of Justice to Supreme Court: Deny Cert, But If You Don't ...
In Audio Evolution Diagnostics v. United States, the U.S. Court of Federal Claims invalidated Audio Evolution's asserted patent claims, deeming them abstract ideas under the Alice framework. The U.S. Court of Appeals for the Federal Circuit affirmed the decision with a one-line order under Rule 36.
Audio Evolution filed a petition for a writ of certiorari on two issues: 1) whether the patent claims are ineligible for patenting under Section 101 and 2) whether the Federal Circuit erred in summarily affirming the lower court's decision. The government responded, arguing that the petition should be denied. It argued that this case does not present "any more compelling reason for the Court to grant certiorari than did prior cases like Interactive Wearables or American Axle . . ." (The government also argued that the Rule 36 summary affirmance issue should be denied because the U.S. Supreme Court clearly does not want to address it.)
The surprise comes with the government's position that if the Supreme Court does grant review of the first question (patent eligibility), the government "will not defend that aspect of the judgment below, but instead will argue that the relevant claims are patent-eligible under Section 101." The government goes on to state that, in its view, a "scientific or technological apparatus is patent-eligible even though it is claimed at a high level of generality."
I've said it before, and I'll say it again: I am confident that the Court is not granting cert on this one. The Court recently rejected patent eligibility petitions, asking whether "factual disputes at Alice Step 2 should be treated the same as other factual disputes for purposes of summary judgment," and, in another case, whether the Federal Circuit was correct in affirming ineligibility on summary judgment when the plaintiff submitted hundreds of pages of evidentiary documentation purportedly related to eligibility. The government is correct that this case is not much different than what the Court rejected in Tropp or Interactive Wearables. Audio Evolution will likely fare no better.
If you are rooting for patent eligibility to change, congressional reform has a better chance than the Supreme Court weighing back in on patent eligibility.
Read the government's brief.
Serie A: The Final Sprint
Let's step away from patent eligibility for a minute and look at something nearly as exciting: the Serie A race. (I'm talking about Italian soccer, FYI.) The main event is which team will win the scudetto – i.e., the championship. It's a two-horse race with only three rounds remaining: Napoli are currently ahead of Inter Milan by three points.
But more interesting is the race for Champions League qualification, which goes to the top four teams. It's a tight race for that fourth spot, with Roma, Juventus and Lazio all on 63 points and Bologna only one point behind.
Juventus are in the fourth spot, but only on goal differential. Head-to-head is the first tiebreaker, and Juventus and Roma played two draws.
Roma have the better head-to-head record with Lazio, securing a massive three points in January over their city rivals. At the time, Roma were flirting with relegation but are currently on a 19-match unbeaten streak in Serie A – thanks to Claudio Ranieri in his third stint as Roma's manager.
Can Roma keep the streak alive and gain that fourth spot in the Champions League, or will Juventus, Lazio or Bologna play spoiler to the story of the season? Tune in the next three weeks to find out – and, as always, Daje Roma!
