#patent-eligibility

#patent-eligibility

Conventional wisdom is that a good certiorari petition needs to show the legal error below and also show why the case is important and timely. The petition follows this dual framing strategy: (1) a doctrinal claim that the Federal Circuit has abandoned preemption as the touchstone of patent eligibility; and (2) a policy argument tied to what I think of as the "new great game" and what the Trump Administration calls "Winning the AI Race." The case also arrives at the Supreme Court as the USPTO has begun to move aggressively toward limiting its use of eligibility in patent prosecution.

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Chairman Thom Tillis (R-NC) and ranking member Adam Schiff (D-CA) both acknowledged the widespread confusion in current eligibility jurisprudence, with Tillis noting that the status quo "continues to be hopelessly confused" and expressing determination to move the bill forward to committee markup. The Bill has bipartisan support in the Senate, but it is unclear how hard those in opposition would push if the bill started to move forward.

Judge O'Malley, who served on the Federal Circuit from 2010 to 2022 after 16 years in the U.S. District Court for the Northern District of Ohio, was the first former district court judge to be appointed to the Federal Circuit. Her unique perspective as both a trial and appellate judge has continued to shape her views on the judiciary, patent law challenges, and the future of IP.

The petition argues that the panel's holding directly conflicts with the court's precedent in Yu v. Apple Inc., 1 F.4th 1040 (Fed. Cir. 2021) as well as Supreme Court precedent by allowing systems to avoid ineligibility simply by reciting conventional components that perform basic functions at a high degree of generality. The patent in this case seems to me similar to so many others -- it claims a known physical system at a fairly high level of generality and couples that with previously unknown information processing.

Longitude Licensing Ltd. v. Google LLC highlights the ongoing patent eligibility challenges as the Federal Circuit dismisses claims under 35 U.S.C. § 101 for generic, functional limitations.