Wednesday, May 17, 2017

Cleaning Up The Patent Eligibility Muck: A Welcome Proposal by The AIPLA



On Friday the American Intellectual Property Law Association (AIPLA) released a much needed legislative proposal to hopefully clean up the muck currently polluting patent (in) eligibility inquiries.  Under current U.S. “law”, the courts have made a muddled mess of patent eligibility (under the relevant statute 35 USC š 101).  And, in so doing, they have cast doubt over the patentability of most e-commerce and/or software inventions.

In short, the Courts have created an “abstract” idea exception to patent eligibility that is so broad, so subjective that few inventions could survive it. And the courts (and Patent Office) have long since disappeared into that un-navigable swamp.  We welcome the AIPLA proposal to clean up this court-created mess.  See: http://www.aipla.org/resources2/reports/2017AIPLADirect/Documents/AIPLA%20Report%20on%20101%20Reform-5-12-17.pdf.

This Blogger supports the proposed eligibility exception which states that a claimed invention would be ineligible “…only if the claimed invention as a whole exists in nature independent of and prior to any human activity.”  Restricting ineligibility inquiries to inventions that exist independently of AND (CAPS Intentional) prior to human activity seem like good ideas.  The proposed prohibition against courts (and the Patent Office) mucking about in prior art and drafting-related inquiries (under 35 USC šš 102, 103, and 112) should further limit the reach of the courts during eligibility examinations. And the strongly restrictive term “only” ought to serves as a long overdue admonition against the courts dragging potentially worthy ideas through the "abstract" idea mud.   

We shall see.  

The only improvement to the proposal that this Blogger would like to see is a safe haven for applications that were pending when (in hindsight) this court-created mess became intolerable.  While such a safe haven would be unusual, so too has been the resulting whole scale destruction of IP rights under the current so-called law.  

We at the Villhard Patent Group would welcome a chance to discuss your idea.  You can find more information about us at www.villhard patents.com or you can call us at (512) 897-0399.  We look forward to hearing from you.

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