Shook, Hardy & Bacon’s Seattle Managing Partner Bart Eppenauer weighs in on the current patent eligibility standards in a September 6 Law360 article, “Ruled Out: Has the Supreme Court Set the Patent Eligibility Bar Too High?”
While some attorneys criticize the U.S. Supreme Court’s recent interpretation of Section 101 for making it too difficult to secure patents, Eppenauer believes that the Federal Circuit is starting to make progress in clarifying patentable subject matter area through recent decisions. “What we’re seeing now is some balance being restored because the right cases are coming before the Federal Circuit,” said Eppenauer. “Each one of the Federal Circuit decisions provides meaningful guidance for inventors, patent owners and attorneys.…As the months go by and maybe in a few more years… we will arrive at a place that works. It’s just not the right time to pull the emergency lever.”
Eppenauer observes that changing patent law through the legislative process could create conflict between industries, as they may assert their own agendas in a Section 101 reform. For example, one industry may be willing to push constraints on another sector in an attempt to relieve constraints on its own industry. He cites that such industry conflicts occurred previously during the legislative process of creating the America Invents Act.
Eppenauer says that attorneys have been able to better secure patents following guidance from the USPTO and the Federal Court. Eppenauer adds, “Patent applicants that make sure their claims are directed to a practical application or a technological focus, and they describe how they achieve the end result, are having success at the patent office. As these decisions come out, there will be more and more clarity.”