The George Washington Law Review has published its symposium on "Cracking the Code: Ongoing § 101 Patentability Concerns in Biotechnology and Computer Software." Here are the five contributions:
Paul R. Michel, The Supreme Court Saps Patent Certainty. Former Federal Circuit Chief Judge Michel argues that courts "have only made things worse." The Supreme Court doesn't understand patent law or science, but the biggest problem is that the courts "don't focus enough on the systemic effect." Justice Breyer's assertion that § 103 is insufficient is "just stated as an oracular truth." The "only way forward that is feasible . . . is the Federal Circuit," which can "limit and clarify some of the broader statements" in recent Supreme Court cases. The § 101 exceptions were created "out of the air" and "they're not very good categories" because "it's not clear what's in and what's out," they overlap, and they are "subjective" and "indeterminate." Some might not trust the Federal Circuit after the "train wreck" of CLS Bank, "but it's the least worst alternative." "[T]he most important people of all that the patent system is designed to motivate . . . are the people who make investment decisions" like venture capitalists, and what they want is certainty, which we don't have now with § 101. The Federal Circuit has "had to fix Supreme Court problems" at least twice before, after eBay and KSR, and it can do it again.
John M. Golden, Flook Says One Thing, Diehr Says Another: A Need for Housecleaning in the Law of Patentable Subject Matter. The Supreme Court has "tended to present its prior opinions . . . as part of a 'seamless web' rather than as the confusing agglomeration of conflicting parts that experts commonly find them to be." It need not overturn precedent, but it can "clear[] doctrinal underbrush." "The Essay indicates the plausibility of judicial adoption of these proposals by showing how they comport with reasonable understandings of recent Supreme Court opinions and with concerns that Supreme Court Justices have voiced during oral argument."
Christopher M. Holman, Patent Eligibility Post-Myriad: A Reinvigorated Judicial Wildcard of Uncertain Effect. "This Essay identifies some of the critical open questions that have been raised by the Supreme Court’s reinvigoration of patent eligibility, and it reviews some of the early efforts by lower courts to apply the heightened standard in a manner that maintains adequate incentives for innovation while addressing the legitimate policy concerns underlying the Supreme Court’s current obsession with the doctrine."
Kristen Osenga, Debugging Software’s Schemas. "There are two general schemas that are shaping current discussions about software and computer-related invention patents—that software patents are generally bad (the bad patent schema) and that software patent holders are problematic (the troll schema). Because these frameworks were created and are maintained through a series of cognitive biases, they suffer from a variety of bugs."
Tun-Jen Chiang, Competing Visions of Patentable Subject Matter. "The ostensible consensus that PSM law is about answering an agreed-upon utilitarian-economic question is an illusory one. In reality, debates about PSM law are not just about differences in empirical intuitions over economic costs and benefits; they are more importantly about differences in moral values . . . . Better data and more evidence will not resolve what is in reality a debate over first- and second-order normative commitments." Edit: In case you missed it, my co-blogger Dmitry Karshtedt had a nice post on this article back in November.
