Solicitor General backs SCOTUS review of Athena in brief for Berkheimer

December 12, 2019 By Mark McCarty

Those who believe the U.S. Supreme Court must revisit the patent subject matter eligibility problem may get their wish. While Solicitor General Noel Francisco advised the Court that it should not hear the Berkheimer case, he nonetheless said that Athena v. Mayo might avail the Supreme Court of the appropriate fodder for resolving the ongoing subject matter eligibility problem.

This is great for SFOR, as Athena v. Mayo covers a lot more subject matter.

December 13, 2019 RPX article:

Patent Litigation Feature

The Federal Circuit’s February 2018 opinions in Berkheimer and Aatrix have significantly curtailed the application of Alice in district court litigation through their effective preclusion of early dismissal under Section 101. Indeed, a recent RPX analysis shows that the overall grant rate for patent eligibility challenges has fallen by more than 20% as a result. Now, as the US Supreme Court considers a petition for certiorari in the Berkheimer case, the US government has come out against further review of that holding. On December 6, Solicitor General Noel Francisco filed an amicus brief arguing that certiorari should be denied because this case addresses mainly procedural aspects of Section 101. Rather, the government argues that the Court should instead grant review of a case for which substantive eligibility standards are at issue “and then address any ancillary issues that remain”.