Following the decision of the High Court of High Court about patent qualification, the American Bar Association intellectual property law section recently proposed the amended law to the US Patent and Trademark Office. Earlier this year, the Intellectual Property Owners Association created its bill regarding patent eligibility, which found support among many industries.

Section 101 of the patent Act is currently at stake, which the ABA and IPO both argue has not been clearly interpreted. The ABA proposal tries to outline the narrowed conditions under which inventions are not eligible for the patent. They argue that eligibility for patents should not be based on anticipation or clarity, but that the rights should be ignored by other people by using basic ideas or natural events.
Previous history of reshaped patent eligibility
Since 2010, the Supreme Court has included in four important matters of the Patent Eligibility Court, including: Bilski v. Kappos (2010), Mayo v. Prometheus (2012), Association for Molecular Pathology (AMP) v. Myriad (2013), and Alice v CLS Bank (2014). Before 2010, the Federal Circuit defined the eligibility of the patent using “machine-to-conversion” testing. The Supreme Court rejected the exam in Bilski and seemed to apply §§ 102 and 103 views on patent eligibility analysis. In the cases of Mayo, Myriad and Alice, the court today developed a two-part test to determine patent eligibility, which is used today.
First, there are claims for a patent-inacceptable concept,” Palmer said. “And, second, if yes, then what other elements are changed into a patentable application? In the second step, regular or conventional steps are not enough to file a patentable claim.”
Tow-part test: Patent Practice
According to Palmer, the trial of two parts of the court has had a great impact on patent exercises. In fact, under the “machine-or-change” test, patent eligibility protection, the district court is rarely successful in litigation, which is also successful in the most anticipated areas for eligitation attacks, such as business methods and financial services – Bilski and her children changed. Today, it is common to know that § 101 were lifted at the beginning of rejecting the defense and in the beginning of the succeeding, “he said.” It is difficult to get a patent under the new standard of the court because the applicants now more eligibility rejections are being faced during the prosecution so that more constructive claim formatting strategy is required.

Patent eligibility standard and chilling effect of Patent Right in lower court
Some people have expressed concern that the court’s patent eligibility standard may have a chilling effect of patent rights in the lower courts, according to Palmer, the risks to private companies to invest in research and development. For example, a case called Ariosa v. Sequenom had a patent that found that embryonic DNA is present in the mother’s blood and the father’s DNA. The claim was directed to a method of defected to a method of detecting paternally inherited nucleic acid amplifying the paternal DNA and then detecting it. This quest was a great advance because it provided a safe way to get embryonic DNA. “” However, the District Court found the claim patent ineligible under two part of the court trial. The fact is that embryonic DNA present in the mother’s blood is a natural phenomenon, and additional steps to increase and detect DNA were already done regularly in the art. ”

Many things can be exclude from Patent eligibility
The federal circuit affirmed, confirming that “groundbreaking, innovation, or even brilliant discoveries “can be excluded from the patent eligibility under the new test. The nation that groundbreaking discoveries otherwise patentable under §§ 102, 103, and 112 requirements may not be patent eligible has given a lot of patent practitioners pause.

Tow-part test is often ambiguous and different to apply
The point of concern is that according to Palmer, the trial of two parts of the court is often unclear and difficult to implement. This has led to uncertainty in the decisions related to purchase and enforcement of patent rights and the value of the patent properties bought and sold in merger and acquisition. Therefore, patents are being mobilized to change the statutory language of § 101. Although they are worded differently, the ABA and IPO’s proposed revisions seek to ultimately achieve the same primary goal.
• First, they would codify what has long been the law: that you cannot patent a law of nature or abstract idea essentially adopting the first step of the Court’s patent eligibility standard.
• Second, they would reject the Court’s use of §§ 102 and 103 considerations and save those for the question of patentability essentially rejecting the Court’s second step.
• Third, they would require that patent eligibility be assessed by considering the invention as a whole, which is designed to eliminate the parsing of individual claim elements into either natural phenomena or conventional activity.

Risks foreclosing patent protection
The ABA believes that the trial of the two parts of the court is very far away and prevents patent protection for inventions involving the practical applications employed in the nature’s laws. It is proposed to limit patent disqualification for only those claims, which will ignore others for the use of all practical applications of the law of nature or abstract thought. This is important because although the Court believes that the total receipt is a factor which can claim the patent-ineligible claim, it is not currently required, on which the eligibility is based, “Palmer said” the proposal of ABA is more It is true that in that sense IPO.

According to Palmer, these amendments are dependent on patent owners, but not everyone is helpful. For example, Bilski, Mayo, Myriad and Alice have given several accused an additional tool to fight against unprofessional organizations. Hence, the level of support for these modifications will depend on when you fall on this spectrum. That being said, Palmer does not think the court will change its eligibility analysis in the foreseeable future, and Congress is not likely to take up these anytime soon. He said, “Patent owners will need to develop and implement the prosecution strategies designed to stay with two-part qualifying tests of the court and maximize patent security. I do not believe that PTO status of these proposed amendments In the absence of the Congress will take action.