04.03.19
Gemini version available ♊︎The Court of Appeals for the Federal Circuit (CAFC) ‘Disses’ Iancu’s Guidance on 35 U.S.C. § 101, Sides With the Supreme Court (Alice) and Caselaw
35 U.S.C. § 101/Alice (SCOTUS) as seen by CAFC is, as expected, a ‘scary monster story’ to Donald Trump's man
Summary: The high court that decides on patents (CAFC) has just let it be known that it won’t bother with Andrei Iancu’s little stunt whose sole purpose is to facilitate granting of more fake patents, such as software patents (by circumventing § 101)
THE U.S. Patent and Trademark Office (USPTO) under deplorable Andrei Iancu arrogantly chooses not to obey the Federal Circuit. Yes, it’s similar to Battistelli at the EPO, but that’s a separate matter (for our next post). Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) are besieged, but they carry on. Unified Patent has just announced the hiring of several more people, who certainly will deal with IPRs. IPRs are the law, they’re protected by SCOTUS, and are an integral part of AIA.
“Kalis and others in the patent extremists’ ‘community’ nowadays have a new strategy: claiming CAFC is ‘fed up’ with § 101.”What’s noteworthy is that, as Professor Lemley has just noted, ‘Fed Cir makes clear that PTO guidelines on patent eligibility don’t get any deference in court: “While we greatly respect the PTO’s expertise on all matters relating to patentability, including patent eligibility, we are not bound by its guidance.”‘
This is the source document [PDF] and the screenshot is included at the top.
This is especially worth noting because Janal Kalis, a vocal patent maximalist, has cherry-picked another bit to frame it differently. He’s trying to claim that CAFC is dissenting against 35 U.S.C. § 101, based on almost nothing (maybe a sentence from one judge). Kalis and others in the patent extremists’ ‘community’ nowadays have a new strategy: claiming CAFC is ‘fed up’ with § 101. This is hardly supported by any evidence, however, but rather an incident or two, maybe a few words in some text. Like Judge Moore’s statement last year (about intervention at another, unspecified level, as we covered at the time).
“They cherry-picked a decision or two.”What CAFC actually did say is rather damning; they tacitly note that Iancu is defying caselaw for the sake of software patents and patent trolls who use these for blackmail. We don’t expect Iancu’s stunt to really change anything; consider the fact that the vast majority comments the Office has received oppose his proposal. Meanwhile, Bill Abrams at Watchtroll says § 101 is wrong because he doesn’t like it (“Request for Amici: Tell the Supreme Court to Clarify Section 101″). There’s nothing to clarify, Alice already did just that. Mayo did too. But the patent microcosm is losing its mind and looking for reprieve. Another new Watchtroll blurb is not supported by evidence (“Recent Cases Show Federal Circuit Is Concerned About ‘Over Abstracting’ Rejections of Method/ Process Patents”). No, not really. They cherry-picked a decision or two. We still watch this stuff closely, we’ve put some recent case outcomes in our daily links, and what Watchtroll says isn’t supported by evidence. They cherry-pick what suits them. Speaking of cherry-pickers, in our last daily links we included a short rebuttal to Anticipat, which shifted attention from IPRs to mere patent applications so as to frame things misleadingly — the same thing Kalis does a lot. We’re not really supposed to be covering US patent cases this year, but this one was particularly worth noting and there was a lot to debunk. █
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