Recommendations for Evolving Patent Eligibility of Hardware

Regardless of whether a patent practitioner's clients favor a stricter or more lenient eligibility regime, patent eligibility decisions continue to evolve. Patent practitioners have been seeking updated guidance since 2014's Alice Corp. Pty. v. CLS Bank Int'l, 573, U.S. 208 (2014) decision, and we may see some from American Axle & Mfg. v. Neapco Holdings, LLC, 967 F.3d 1285 (Fed. Cir. 2020). We are still waiting for a response to last year's invitation from the Supreme Court to the Solicitor General seeking guidance on granting certiorari in American Axle. Some practitioners have wondered why American Axle should be the subject of such long-awaited guidance. Indeed, practitioners filing an amicus brief in Interactive Wearables, LLC v. Polar Electro Oy, stated their preference for an application surrounding an "intuitive technology" over American Axle's "highly technical subject matter." Interactive Wearables, LLC v. Polar Electro Oy, et al., No. 21-1281, Brief of the Chicago Patent Attorneys as Amici Curiae in Support of Petitioner at 4 (U.S. April 21, 2022). However, it can be argued that the level of technicality is indeed what makes it the right case: We need a line drawn for what practitioners expect to be clearer. Hardware inventions are facing patent eligibility challenges that would have seemed more likely in software inventions. Recent court decisions have shown that what once made a hardware invention eligible may no longer fly.