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Back on March 4 the U.S. Patent and Trademark Office issued what has turned out to be a very controversial Guidance on patent eligible subject matter. This Guidance was issued in response to several high-profile Supreme Court decisions involving questions of patent eligibility under 35 U.S.C. § 101. The USPTO has since held a public forum and meeting on the Guidance, at which Dilworth IP’s own Dr. Anthony Sabatelli was invited to present, and also invited public comment. These comments, including those submitted by Dilworth IP, have now been published on a USPTO web page devoted to the Guidance.

This is the fourth article in a review of recent patents in the area of Fluid Catalytic Cracking (FCC). The first article reviewed patents on catalyst additives, and demonstrated that relatively few patents had recently issued on FCC additives (e.g., gasoline sulfur reduction catalysts), likely reflecting the current use of gas oil hydrotreaters and naphtha hydrotreaters/desulphurizers, which reduce the need for such additives. The second article reviewed patents related to zeolites, and demonstrated that trends in this area reflected an emphasis on the mesoporosity of those zeolites. The third article reviewed patents on cyclones, and showed that patenting trends in this area appear to be primarily related to improvements in performance for conventional designs, consolidation of other reactor operations (stripping) to the cyclone, or design of separation systems usable in a variety of existing regenerator designs. The current article covers recent patents relating to cracking catalysts. There are relatively few of these patents, and not enough to designate any trends as a whole, although as mentioned previously there are patenting trends in the zeolite portion of the catalyst.

A lot of commentary has followed in the wake of the Alice Corp. v CLS Bank decision. I think, for now, we can put aside the question of whether computer implemented inventions, i.e., software, are patent eligible and instead refocus our perspective, when drafting claims, on what the Court really sees as patent eligible in light of Alice Corp. and other Section 101 precedent.

With the Alice Corp. decision, the Court has brought its definition of an “abstract idea” into slightly sharper focus, especially when seen in the light of the other patent eligibility decisions preceding it. Alice found that software patents do not have a special test. The same test used for all other types of patents also applies to software and business method patents. I am sure opponents of software patents will continue to push their cause, but for now the main fight should shift away from whether software is patent eligible and instead focus on how specific an application needs to be claimed to be patent eligible.

Last week I reported The Supreme Court unanimously decided that computer implemented business methods are not patent eligible subject matter. See Alice Corp Ruling Spells Trouble but There May Be a “Diamond” in the Rough for Business Method, Software, and Biotech Patents. Now, less than a week later the US Patent and Trademark Office (USPTO) has issued an instruction memorandum to its Patent Examining Corps for analyzing patent claims involving abstract ideas. See USPTO Preliminary Examination Instructions.

In Triton Tech Of Texas, LLC v. Nintendo Of America, Inc.[1] the Federal Circuit affirmed a ruling by the United States District Court for the Western District of Washington that Triton’s U.S. Patent No. 5,181,181 (“’181 Patent”) was invalid for indefiniteness. The case revolved around the claims of the ‘181 Patent and the use of a Wii RemoteTM with a computer. The patent had claims reciting an input device that provided information to the computer about cursor movement much like a conventional mouse, except that the information provided by the ‘181 device was related to movement in three dimensions. The claimed input device included acceleration sensors, rotational rate sensors, an analog-to digital converter, buffer memory, and an “integrator means associated with said input device for integrating said acceleration signals over time to produce velocity signals for linear translation along each of … first, second and third axes.”[2]

So, what are the implications of this decision? What does it mean for business method patents, software, and even the biotech industry? If Justices Sotomayor, Ginsburg, and Breyer had their way, business method patents would essentially be dead and software patents would be very hard to come by. However, there is a ray of hope. […]

This is the third article in a review of recent patents in the area of Fluid Catalytic Cracking (FCC). The first article reviewed patents on catalyst additives, and demonstrated that relatively few patents had recently issued on FCC additives (e.g., gasoline sulfur reduction catalysts), likely reflecting the current use of gas oil hydrotreaters and naphtha hydrotreaters/desulphurizers, which reduce the need for such additives. The second article reviewed patents related to zeolites, and demonstrated that trends in this area reflected an emphasis on the mesoporosity of those zeolites. The current article covers recent patents relating to cyclones.

The Food and Drug Administration (FDA) has issued a regulation establishing a list of “qualifying pathogens” under the Generating Antibiotics Incentives Now (GAIN) act. Gain, which came into force back in 2012 as part of the Food and Drug Administration Safety and Innovation Act (FDASIA), provides strong incentives to encourage development of new antibacterial and antifungal drugs for treating serious or life-threatening infections. Under GAIN, new qualifying drugs would be awarded an additional five years of exclusivity, priority review, and eligibility for fast track designation. Based on analyses conducted both in the proposed rule and in response to comments, the FDA has now added additional “qualifying pathogens” to the list of pathogens proposed back in 2013. New drugs intended to treat serious or life-threatening infections caused by one of these listed pathogens may be eligible for the GAIN incentives. The new rule takes effect on July 7, 2014. Senator Richard Blumenthal, who has been a strong proponent of Connecticut’s biotechnology industry was originally responsible for introducing the legislation that resulted in the addition of GAIN to FDASIA.

In Nautilus, the Court deals with the complex question of patent claim construction and scope in view of the standard for definiteness (in layman’s terms, whether the patent claim is clearly written and defined in the patent disclosure). The governing statute here is the second paragraph of 35 USC § 112 (“definiteness”), which states that a patent “shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention”. If a patent fails to meet this requirement, the claims can be found invalid for being “indefinite”.

This past Monday was a busy day for the Supreme Court. It handed down two unanimous decisions, each overturning lower Federal Circuit Court rulings. In Nautilus, Inc. v. Biosig Instruments, Inc., the Court dealt with the esoteric question of patent claim construction and scope in view of the standard for definiteness (in layman’s terms, whether the patent claim is clearly written and defined in the patent disclosure). In Limelight Networks, Inc. v. Akamai Tech. Inc., the Court dealt with the more straightforward question of whether a party, who only carries out some of the steps of a method patent, is liable for infringement if it encourages others to carry out the remaining steps – even if there would otherwise be no direct infringement. I discuss the Limelight case in this article. The Nautilus case will be discussed in a future article.