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« Life Sciences Court Report | Main | CVC Submits Motion No. 2 in Opposition to Broad's Substantive Motion No. 2 to Substitute the Count »

February 04, 2020


"But Senator Tillis chalks up the difficulties to disagreement and stubborness amongst the stakeholders." The best lies have a kernel of truth in them. Tillis is correct in that there isn't consensus among the "stakeholders" as to what should be done. But using that fact as a basis to kill 101 revision is a ruse, and my money is on Google et al. having threatened Tillis, at a minimum, with supporting his opponent in the next election.

Your proposal to take 101 off the table and to compensate by allowing limited pre-discovery 102, 103 and 112 motions is sensible.

This approach, while reasonable, again assumes that there is a flood of litigation over bad patents that are pushed by trolls. We have yet to find convincing evidence of this supposed problem. The real issue is that powerful interests are satisfied with the present system which allows them to infringe with impunity, escaping any real consequences for their actions. Until the US decides to again embrace inventors and compensate them for their contributions to the common good through early and full disclosure of their inventions, the patent system will be a not-so-innocent bystander in the muggings of inventors by powerful corporations and foreign governments.

I have to wonder if the Senator will publicly list which stakeholders were against a clear "Step One" of fixing the mess that the Supreme Court had created.

We then can find out why these stakeholders proclaim to be FOR fixing the mess (while actually being against fixing the mess).

"Tillis stated that... a consensus driven approach... is a requirement for entry. This is in stark contrast to a joint statement released last year by Senators Tillis and Coons. Just a few months ago, they wrote that "the U.S. patent system with regard to patent eligibility is broken and desperately needs to be repaired..."

I do not see a "stark contrast" here. There is no real tension between the assertion that the status quo is broken, but that stakeholder consensus is necessary to fix it. People need to be willing to compromise if we are going to get the fix done.

"[T]he Court is happy to let patent eligibility percolate in the Federal Circuit and district courts a while longer."

If by "a while longer," you mean "until at least five current justices have left the court," I agree.

"A possible solution that addresses both concerns... is a modest proposal: (i) let § 101 reform happen, abrogating... the... ill-defined judicial exceptions, and (ii) allow rapid, limited-scope, pre-discovery motions for claim invalidity in district courts."

Sure, this is a fine compromise. For whatever little my opinion is worth, I would cheerfully get behind this. I would also have cheerfully gotten behind the original Tillis/Coons bill. Both of these are better than the status quo. We need to stop the perfect from being the enemy of the better.

I like that you state:
The first part of the proposal addresses the "what is eligible?" question by taking us back to a more cogent and predictable regime elucidated in Diamond v. Chakrabarty -- eligible inventions are "anything under the sun that is made by man." The confusion and debate over § 101 will largely be a thing of the past, and we only need consider whether the claims are to a process, machine, article of manufacture, or composition of matter.

I add that the patent application prosecution and patent issuing functions of the USPTO should have a stated intent which is to promote all technology by man that increases growth of business in the United States in fair ways.

Here it is 2020 and the remarkable age of computers and software is accelerating beyond our wildest dreams. It is a highly valuable business area. The USPTO and its laws and rules need to get on board with reality of this business area. Patenting is a vital form of protectionism for small and large entities and should embrace invention patenting involving computers and software.

There is no need for politics and government levels of law to be obstructing what is common sense.

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