Section 101 Patent Eligibility at the Supreme Court: Where Are We?
Dennis Crouch at Patently-O has a breakdown of the patent cases currently pending before the U.S. Supreme Court. As he notes, a number of these cases could be transformative if certiorari is granted, including American Axle discussed below. It is well worth your time to read his entire post.
But for this blog's purposes, let's look at the pending petitions that touch on patent eligibility:
- American Axle & Manufacturing, Inc. v. Neapco Holdings LLC – If the Supreme Court takes up a Section 101 case, this has to be it. It has drama: the Federal Circuit being evenly divided (6-6) on whether to rehear the case en banc (and the dissents). It also has a signal: the Supreme Court has requested the view of the Solicitor General.
Back in January, I wrote that American Axle could be the appropriate vehicle for the court to address, as American Axle put it, the Federal Circuit's "cries for help." But the Supreme Court is certainly not reaching to address Section 101. So will the court grant this petition? ¯\_(ツ)_/¯ (Read more about American Axle with regard to patent eligibility clarity and subsequent actions.)
- ENCO Systems v. DaVincia – The Federal Circuit affirmed the ineligibility of a patent directed to automating the audio-visual (AV) captioning process, which included converting audio to text and associating that text with corresponding video. The Federal Circuit found that the focus was not on a specific improved computer technology, but simply the use of computers to "conserve human resources" by automating the work.
While an interesting case, it does not offer what American Axle does, and I expect the Supreme Court to deny this petition.
- Bongiorno v. Hirschfeld – The blog covered the Bongiorno decision this summer, where the Federal Circuit agreed with the PTAB when it determined that the patent claims were directed to "planning and executing a vacation or travel itinerary," which was effectively a method of organizing human activity – an abstract idea.