The Patent Whisperers
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By Raymond Van Dyke, LES Washington D.C. Chapter Chair, Van Dyke Law
iving in the Washington, D.C. area means that I can go to hearings and other proceedings concerning intellectual property, such as the Senate Hearings on patent eligibility. In a rare bipartisan effort to address serious concerns in patent law, Senators Tillis and Coons allocated three days of hearings in early June with a total of 45 witnesses testifying.
CONTENTS
Ray Van Dyke
The rather small Senate Judiciary room caused many, including me, to wait in line to get in. Over the three days of testimony, the views expressed on the issue of patent eligibility were diverse, with patent experts, scholars, industry people and organizations opining on this rather obscure issue of patent law thrust into national prominence.
Patent eligibility is directed to a threshold question on whether or not a particular invention, as set forth in a patent application, can enter the patent system. Patent eligibility is a very different requirement than the more conventional main hurdles of novelty or newness, and non-obviousness, both of which are separate and stringent barriers facing all innovations in the patent gauntlet. There are various other requirements as well before a patent can grant. Until roughly 10 years ago, the patent eligibility threshold was a non-issue, and the governing statute, 35 U.S.C. Section 101, was considered a “coarse filter,” i.e., most innovations passed through and proceeded on to the far more rigorous patent tests, such as novelty. However, for various reasons Section 101 of late has been used as a cudgel to deny patentability to an increasing swath of innovation, with the U.S. Supreme Court complicit in this effort.
The incredible progress of innovation in the life sciences and software industries in the last few decades have transformed society, and created mega tech corporations such as Microsoft, Google, Amazon and others. The technologies of today are increasingly intangible, i.e., modern companies’ valuations are now primarily based on their intellectual property, which includes patents and brands, and less on equipment and other tangible assets. The biggest companies now are almost entirely based on intangibles, with Apple having crossed one trillion in valuation based primarily on their IP, i.e., patents, branding, etc.
This technological growth has not gone unnoticed by countless inventive minds in this nation and around the world. With the enormous rise in valuation, there was (and is) a huge interest of people and small companies with their own big ideas to partake in the patent process. So, they filed and obtained countless patents in these new areas. Since our Founders, in essence, democratized the patent system, anyone with a new idea can get a patent in this country even if they are not themselves manufacturers or have connections in the industry. The large companies, particularly the tech companies, continue to release products and services, including patent protected innovations of others embedded therein, and were thus sued for patent infringement by these patentees. Although some of these suits were frivolous, many big companies wanted a fix to allow them to operate without threat of litigation, i.e., stop these inventors from enforcing their patents and allow big tech to do what it wanted, as it wanted.
Considerable lobbying and patent reform, which resulted in the 2011 America Invents Act, dominated the scene, creating new ways to administratively invalidate patents, i.e., take the litigation out of the courts. Along with this new legislation, the issue of patent eligibility became muddied, particularly by the Supreme Court, creating confusion and unpredictability. The lower courts, desirous of easy ways to dispose of these complicated patent cases, eagerly employed these new tools of dismissals for failure of an invention to meet the now shifting patent eligibility standard, which primarily resulted from the Supreme Court’s Alice decision.
Senate Judiciary Room
Patent Whisperers, continued on Page 4
President’s Message ..................2 The Patent Whisperers ...........3-4 Sector Highlights .........................6 High Tech Sector Webinar.............7 CLP 2019 Exam ..........................8 5 Questions With A CLP ............9 LES Member Spotlight ...............10 Patent Act Of 2019 ..................11 Who’s Your Leader? .....................11 LES Chapter Events ..............12-13 YMC Meeting..............................15 Annual Meeting Schedule.....16-17 LES New Members ....................18
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Sadly, the USPTO went along with this ride and denied hundreds of thousands
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