Supreme Court Declines to Further Deal with 101

January 16, 2020
Post by Oliver P. Couture, Ph.D.

            On January 13, the Supreme Court denied certiorari in five additional patent cases involving 101, including Athena, Vanda, and Berkheimer. Many sides, including industry, academics, and the government, were encouraging the Supreme Court to uptake at least one case in order to help clarify or define the Alice/Mayo framework. However, even given the pressure, the Supreme Court still denied every case. Further, as the orders provide no explanation as to why certiorari was denied, one may assume that the Supreme Court is content with the status quo of their incongruous precedent.

            This denial may also be a signal from the Supreme Court that it is their intention to place the burden adding clarity onto the shoulders of the Federal Circuit Court of Appeals, or requiring legislative action by Congress to either fix or overturn their rulings. This is unfortunate as the Federal Circuit appears to have ignored the Supreme Courts caution of not over applying 101 to swallow all of patent law by allowing, for example, medical diagnostics to be per se unpatentable. Also, legislation in Congress has appeared to have stalled as even individuals within the biotech industry cannot agree on whether 101 needs to be fixed. So, unless Judge Stoll can bring other Judges to her way of thinking, the current mess of 101 jurisprudence will remain.

            However, on the plus side, the Supreme Court did not take up and overturn Berkheimer, as doing so may have led to more damage to the patent system. Further, by not touching Berkheimer, the current USPTO 101 guidelines will remain in place. So for the time being, prosecution will not be changed.

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