Welcome to another swinging patent pendulum editio
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Posted On: 02/13/2018 12:52:49 PM
Welcome to another swinging patent pendulum edition of Skilled in the Art.
I’m Law.com IP reporter Scott Graham and I’ve got news of the first potential blockbuster patent decision of 2018, even as I digest the 2017 Patent Year in Review as told by Lex Machina. As always, email me tips on anything IP and find me on Twitter @scottkgraham.
Well, the Federal Circuit has just thrown a big wet blanket over the Section 101 party that accused infringers have been having the last three years.
With the appellate court’s blessing, many district judges have been applying the Supreme Court’s Alice decision at the pleadings stage. That’s allowed hundreds if not thousands of companies to short-circuit patent infringement suits without the expense of discovery and claim construction, to say nothing of trial.
Just a second, a Federal Circuit panel led by Judge Kimberly Moore said Thursday. “Whether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination,” she wrote. And sometimes, fact issues require trials to resolve.
Well duh! But that’s not the shared reality judges and litigants have been indulging since late 2014. Now any patent owner with an expert declaration might be able to get past the pleadings stage, was the reaction in segments of the patent bar on Thursday.
On his Patently-O blog, University of Missouri law professor Dennis Crouch wrote that Moore’s decision “is in substantial tension with prior treatment of eligibility analysis” and the “court needs an en banc powwow to clarify the issues here.”
My thinking on all this: If Berkheimer v. HP becomes the prevailing view of the Federal Circuit, and the Supreme Court surprises (almost) everyone and rules for patent owners in Oil States, why it’ll be 2011 again before you know it.
I’m Law.com IP reporter Scott Graham and I’ve got news of the first potential blockbuster patent decision of 2018, even as I digest the 2017 Patent Year in Review as told by Lex Machina. As always, email me tips on anything IP and find me on Twitter @scottkgraham.
Well, the Federal Circuit has just thrown a big wet blanket over the Section 101 party that accused infringers have been having the last three years.
With the appellate court’s blessing, many district judges have been applying the Supreme Court’s Alice decision at the pleadings stage. That’s allowed hundreds if not thousands of companies to short-circuit patent infringement suits without the expense of discovery and claim construction, to say nothing of trial.
Just a second, a Federal Circuit panel led by Judge Kimberly Moore said Thursday. “Whether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination,” she wrote. And sometimes, fact issues require trials to resolve.
Well duh! But that’s not the shared reality judges and litigants have been indulging since late 2014. Now any patent owner with an expert declaration might be able to get past the pleadings stage, was the reaction in segments of the patent bar on Thursday.
On his Patently-O blog, University of Missouri law professor Dennis Crouch wrote that Moore’s decision “is in substantial tension with prior treatment of eligibility analysis” and the “court needs an en banc powwow to clarify the issues here.”
My thinking on all this: If Berkheimer v. HP becomes the prevailing view of the Federal Circuit, and the Supreme Court surprises (almost) everyone and rules for patent owners in Oil States, why it’ll be 2011 again before you know it.
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