November 4, 2013, 1:00 pm - 2:00 pm (E.S.T.)
Ten years ago if you said that patent eligibility would become one of the most important, hotly debated issues in the patent field everyone would have thought you simply didn’t know what you were talking about. Five years ago some may have seen issues percolating that would raise an eyebrow, but certainly most thought the Supreme Court and the Federal Circuit would continue on their expansive view of patent eligibility. Today, after several years of turmoil patent eligibility in a variety of economically significant technologies is extremely uncertain, including software, natural products, medical diagnostics and personalized medicine. It is with great irony that what we know for certain after the last several years of activity is that business methods are patent eligible.
How we got to this point is well recognized, but the path forward is anything but clear. Even the Federal Circuit is divided (equally) on the question of whether software is patent eligible. Since a failed attempt at en banc reconciliation in the CLS Bank v. Alice Corporation case members of the Court have gone in diametrically opposite and irreconcilable directions, so that a litigant’s outcome depends almost entirely upon the makeup of her CAFC panel. And, while many think that Myriad lost at the Supreme Court in Association of Molecular Pathology v. Myriad Genetics the company continues to aggressively assert its patents, in the face of widespread assumption that their claims are clearly invalid.
Despite this state of almost utter disarray, patent practitioners must still give advice to clients who seek to patent their innovations. Planning strategies that have any chance of succeeding at the Patent Office is a challenge particularly for claims existing in patents filed years before the recent disruption in the law, and this is even more true for claims having a chance of being sustained in the face of litigation challenges unavailable for several decades.
This presentation seeks to answer the questions on the minds of practitioners during this unsettled time:
- Is it ethical to advise clients with software related innovations that they can expect to obtain a patent that will likely be valid and enforceable?
- Why is Myriad continuing to pursue putative infringers? Are the asserted claims really different than those deemed patent ineligible by the courts?
- What claiming techniques should be used in order to give software, natural products and medical diagnostic innovations the best chance of being patent eligible? Does claiming technique even matter?
- Will more elaborate specifications with greater written description be helpful?
- Is patent eligibility based on technological or legal considerations, and is any opinion other than the Supreme Court’s relevant in making this determination?
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