Section 101 Patent Eligibility: A Quick News Roundup

It's been a while since our last blog post, so let's do a quick roundup.

The Supreme Court and Patent Eligibility

In early April, the Solicitor General recommended that the U.S. Supreme Court hear two patent eligibility cases: 1) Interactive Wearables v. Polar Electro, and (2) Tropp v. Travel Sentry. The petitioner in Tropp and both the petitioner and respondent in Interactive Wearables quickly filed supplemental briefs responding to the Solicitor General's recommendation.

If you're a frequent reader of this blog, it will not surprise you that we will keep our comments to a minimum because we represent the respondent in Interactive Wearables. If interested in reading our thoughts on the Solicitor General's recommendation, the brief can be found here.

Law360's Ryan Davis and Andrew Karpan covered both the Solicitor General's recommendation and the parties' responses here and here.

The Supreme Court's conference is set for May 11, and we'll be watching closely.

Patent Reform Is Back (Again)

In January, I noted that Rep. Darrell Issa (R-Calif.) was named the new chairman of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet and opined that this may spell the end for Section 101 patent eligibility reform, at least for now.

Sens. Chris Coons (D-Del.) and Thom Tillis (R-N.C.), along with Rep. Hank Johnson (D-Ga.) all seemingly disagree with me. In a recent Bloomberg Law article, all three gentlemen expressed "optimism" for patent eligibility reform. Coons stated that patent eligibility is an area where "it's possible for us to make progress between the House and the Senate." Johnson agreed, noting that patent eligibility is "a very important issue to solve but I think we can solve it, and it actually begs for legislative solution." We shall see.

The entire Bloomberg Law article (reported by Riddhi Setty and Samantha Handler) is worth your time. It delves deeper into patent eligibility, global competition with China and lawmaker scrutiny of the U.S. Patent and Trademark Office.

Drill Bits as Abstract Ideas

Jeffrey Lefstin, a law professor at UC Law San Francisco, had a guest post on Patently-O, where he discussed a recent International Trade Commission (ITC) decision finding patent claims directed to diamond composite used in drill bits to be an ineligible abstract idea under Section 101. I am posting a representative claim below:

A polycrystalline diamond compact, comprising:

a polycrystalline diamond table, at least an unleached portion of the polycrystalline diamond table including:

a plurality of diamond grains directly bonded together via diamond-to-diamond bonding to define interstitial regions, the plurality of diamond grains exhibiting an average grain size of about 30 μm or less;

a catalyst occupying at least a portion of the interstitial regions;

wherein the unleached portion of the polycrystalline diamond table exhibits a coercivity of about 115 Oe to about 175 Oe;

wherein the unleached portion of the polycrystalline diamond table exhibits an average electrical conductivity of less than about 1200 S/m; and

wherein the unleached portion of the polycrystalline diamond table exhibits a thermal stability, as determined by distance cut, prior to failure in a vertical lathe test, of at least about 1300 m.

Lefstin discussed the ITC's reasoning, which rested on the finding that the claims "recite desired properties but not the way to achieve those properties." (Quote from Lefstin summarizing the ITC's reasoning.) The entire post is worth a read.

As always, thanks for reading and please email with any thoughts or comments.