The Supreme Court has denied the recent bid to fix Alice and Section 101 jurisprudence. In two cases that each petitioned for certiorari, Tropp v. Travel Sentry, Inc. and Interactive Wearables, LLC v. Polar Electric Oy, the Federal Circuit affirmed district court decisions holding the asserted patents directed to ineligible subject matter. The Supreme Court’s denial is particularly acute since the Solicitor General recommended that cert be granted. And it is more painful given that this denial follows another recent instance where the Solicitor General also recommended that the Supreme Court take up Alice. Once again, the patent community mourns another lost chance to clear up the mess that has become Alice. But let’s face it—will the Supreme Court ever save us from Alice? . . . The answer is, probably not.
Read MoreThere is the distinct possibility that Section 101 is finally returning to the Supreme Court. In American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, No. 20-891, the Supreme Court invited the Solicitor General for the views of the United States on the pending petition for certiorari. In response, Solicitor General recommended granting the petition, at least with respect to one of the questions. The SG’s brief underscores the consensus that Alice has spawned more uncertainty than predictability.
Read MoreEarlier this year, the Federal Circuit issued two precedential decisions that were predicted to stem the tide of early dismissals based upon Alice motions. The cases were Berkheimer v. HP and Aatrix Software v. Green Shades Software, and there were both deemed precedential by the Federal Circuit. A recent concurrence at the Federal Circuit, however, shows that the Court may be splitting over the rationale underpinning Berkheimer and Aatrix, and that split may be heading for the Supreme Court.
Read MoreA recent precedential decision from the Federal Circuit sheds important light on how the Court views attorneys fees in patent cases.
Read MoreOn July 20, in an otherwise unremarkable opinion, the Honorable S. Jay Plager issued a stinging dissent that should resound throughout the patent community—and may, in fact, resound throughout district courts. See Interval Licensing LLC v. AOL, Inc., No. 2016-2502 (July 20, 2018). Interestingly, Judge Plager did not dissent from the majority’s holding itself, but rather concurred in the reasoning of the majority. Instead, and importantly, he dissented in the Federal Circuit’s “continued application of [Alice’s] incoherent body of doctrine.” Judge Plager’s dissent is nothing short of a recommendation that district courts stop applying the Alice doctrine, at least not until resolution of other defenses in the case. Does that matter?
Read MoreBitcoin is through the roof, and cryptocurrency technologies are drawing significant investment. Yet, regardless of whether bitcoin is a bubble, the long-term story remains that blockchain is slated to be the next potential big disruptive technology. Like any disruptive technology, those thinking ahead, including startups and established institutions, know that acquiring a portfolio of patents on blockchain features or uses could pay enormous dividends years from now. But the Supreme Court’s harrowing precedent in 2014, Alice v. CLS Bank, which has already doomed so many software patents, may create a formidable obstacle to acquiring blockchain patents.
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