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DavidKappos

The Supreme Court heard an unprecedented six patent cases in its most recently concluded term. Between those decisions, and rulings from the Federal Circuit, it’s clear the federal judiciary is willing to take the reins in attempting to clarify U.S. patent law in the wake of the America Invents Act.

While it is encouraging to see the judiciary work the contours of our patent law, there is cause to be concerned with the excessive focus on subject matter eligibility, as outlined in Section 101 of the patent statute. Congress has declined to put limits on patentable subject matter for more than 200 years. And yet the judicial branch and the U.S. Patent and Trademark Office recently seem to have made Section 101 the issue for determining if a patent is valid, at times to the exclusion of all others.

One might ask, if the patent claims are invalid, who cares if they are scrapped because they are not eligible subject matter (101) versus if they lack novelty (102), are too obvious (103) or are too open-ended or unclear (112)? If we’re concerned for the overarching purpose of the patent system—incentivizing invention—it matters a lot. How we adjudicate patent disputes necessarily determines where inventors and companies make substantial investment in innovation—and where they will invest less. Overreliance by the judiciary and the USPTO on Section 101 blunts the incentivizing purpose of patent protection and deters investment across broad categories of industry.

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