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Intellectual Property Litigation Patent Licensing and Transactions

Reflections on Potential Legislative Reform of the Patent Eligibility Standard

In the last five years, the courts have instead began wading into policy setting without the tools and resources to fully consider all the issues and various interests. Thus, the recent congressional efforts to consider these questions is welcome and, frankly, overdue.


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In recent years, one of the most important and controversial developments in U.S. patent law relates to the standard for whether an invention is “patent eligible,” or in other words, whether an invention falls within the scope of subject matter that is capable of being patented. Through the late 1990s and into the 2000s, for most kinds of patents, patent eligibility was not really a concern for patent holders. Certainly, as exemplified first by the U.S. Court of Appeals for the Federal Circuit’s decision in State Street Bank & Trust v. Signature Financial Group, 149 F.3d 1368 (Fed. Cir. 1998), and later the U.S. Supreme Court’s decision in Bilski v. Kappos, 561 U.S. 593 (2010), the patent eligibility of business method patents and software was an issue both in the prosecution and enforcement of patents. However, widespread uncertainty about and ultimate decimation of issued patents was nothing compared to what we have seen in the last five years since the Supreme Court’s decision in Alice v. CLS Bank International, 573 U.S. 208 (2014), which was the culmination of a series of decisions after Bilski, including Mayo Collaborative Services v. Prometheus Laboratories, 566 U.S. 66 (2012), and Association for Molecular Pathology v. Myriad Genetics, 569 U.S. 576 (2013).

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