Top Section 101 Patent Eligibility Stories of 2022
You waited all year for it, so let's get going. But first, some important holiday notes:
- A quick cheat sheet for holiday movies: "Home Alone" and "The Santa Clause" are on Disney+, "Elf" and "Christmas Vacation" are on HBO Max' "Love Actually" and "Feast of the Seven Fishes" (surprisingly good) are on Peacock, and "The Holiday" and "Die Hard" are on Hulu.
- "It's a Wonderful Life" is on Amazon Prime, but it's not a Christmas movie, and "A Christmas Story" is on HBO Max, but it's supremely overrated, so forget about those two. As the kids say, don't @ me.
Looking to do some holiday baking that's a bit different? A couple suggestions:
- Saint Lucia buns are typically eaten in Sweden around Dec. 13 for the celebration of Saint Lucia. It's a saffron bun that's easy to make and great to eat all winter. Pair it with a classic Swedish glogg. (Bonus: here's Marcus Samuelsson writing on "the tastes and smells of St. Lucia Day in Sweden Linger.")
- Italian tri-color cookies are colorful almond-paste layer cookies with thin layers of jam between each cake layer. Honestly, it's more of a cake than a cookie. It's also a time-consuming recipe that'll take the better part of your afternoon, but they're worth the effort. (You can also visit your local Italian bakery or order them online. While these look promising, I can't yet vouch for them.)
Ok – now to our top Section 101 stories of the year:
No. 3: More of the Same (Again)
Despite the gnashing of teeth, there remains a "I know it when I see it" feel to most of the Section 101 decisions we reviewed this year. Whether it's a patent directed to processing financial transactions, mapping gemstones to blockchain, tracking lost items or facilitating automobile transactions, there has not been a lot of surprises within the individual decisions.
Of course, there were controversies, some of which are holdovers from last year. We'll talk about those next.
No. 2: The Supreme Court Continues to Ignore Patent Eligibility … But Only Kind Of
It feels like I've been writing on American Axle v. Neapco for years – mostly because I have been. But the U.S. Supreme Court finally put an end to that when it denied cert in American Axle despite the Solicitor General filing an amicus brief suggesting the Court grant cert.
While there was much backlash to the Supreme Court's denial, the Court has continued to seek the Solicitor General's input on other patent eligibility cases. The Court recently requested the Solicitor General's views on two pending petitions: 1) Travel Sentry v. Tropp, where the patent owner asserted a patent directed to a method of improving airline luggage inspection by a luggage screening entity; and 2) Interactive Wearables v. Polar Electro Oy, where the patent owner asserted patents directed to obtaining information about content while viewing that content. (Think of looking at a TV Guide to figure out what you're watching.) (Disclosure: Holland & Knight represents Polar Electro in the case pending before the Supreme Court. Our opposition brief, filed in June, can be read here.)
So while the Supreme Court denied American Axle, which surprised and angered many, the Court is still signaling an interest in Section 101. Here's my bold, holiday prediction: The Supreme Court denies the petitions for both of the above-mentioned cases.
No. 1: Section 101 Continues to Be Top of Mind
Section 101 continues to dominate storylines, so No. 1 is a bit of a mélange (and a bit of a cop-out, honestly). Below is a handful of those stories in case you missed them:
- Senator Tillis Released His Section 101 Bill: Roughly one month after the Supreme Court rejected the American Axle petition, Sen. Thom Tillis (R-N.C.) released the first draft of his Patent Eligibility Restoration Act of 2022. Read more about this here.
- The USPTO Introduced a Deferred Subject Matter Eligibility Response Pilot Program: This program was set to evaluate the effects of permitting applicants to defer responding to eligibility rejections. Read more about it here. Ryan Davis from Law360 also dug into the pilot program and talked to attorneys (including Holland & Knight's own Heath Sargeant) to hear how the program is working for their clients. You can read that here.
- Judge O'Malley Says It's "Absurd" that the Supreme Court Won't Address Patent Eligibility: Judge Kathleen O'Malley, who retired in March 2022, spoke with Dani Kass at Law360 and gave a wide-ranging interview that included, most relevant to this blog, comments on Section 101 patent eligibility. And she did not hold back.
- The USPTO's Study on the State of Patent Eligibility Jurisprudence: In 2021, the U.S. Patent and Trademark Office (USPTO) undertook a "study on the current state of patent eligibility jurisprudence in the United States, and how the current jurisprudence has impacted investment and innovation." The USPTO provided a report that found a "diversity of views." Read our blog post here, the USPTO's press release and the USPTO's full report.
- Victoria Carrington and Professor Jorge Contreras analyzed each submission made to the USPTO and provided their analysis in a Patently-O guest post, which is also worth reading.
One final note: I'll be speaking at the AIPLA Mid-Winter Institute. Please reach out if you're attending. Have a great holiday season, everyone. As always, thank you for reading. You can also sign up for a monthly roundup from the Holland & Knight Section 101 blog.