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Courts' Failures In Section 101 Guidance Prompts Call For PTO Rulemaking Solution

Publication Date: 
November 29, 2013
Source: 
Patent, Trademark & Copyright Journal - BNA
Author: 
Tony Dutra

Patent, Trademark, and Copyright Journal quotes Stanford Law Professor Mark Lemley regarding the patentability of computer programs. 

Presenter after presenter at the 2013 George Washington Law Review Symposium criticized the lack of guidance from the Supreme Court and the U.S. Court of Appeals for the Federal Circuit on defining a reliable standard to assess patentable subject matter.

The session, held Nov. 15 at the GW Law School in Washington, D.C., was titled “Cracking the Code: Ongoing Section 101 Patentability Concerns in Biotechnology and Computer Software,” but the code remained elusive both overall and within each of the two disciplines separately.

...

However, Mark A. Lemley, professor at Stanford Law School, said, “There's a pretty strong body of case law that seems to be lining up with Judge [Alan D.] Lourie's approach,” presented in the CLS Bank plurality opinion. “If complex computer programming is in the claims, it will be patentable subject matter. If not, it won't.”

...

Lemley agreed that Rader's approach is the better one “in a perfect world.” But he insisted that “an unbelievable amount of crappy software patents is being asserted,” and he said, “In the trenches of litigation, the thing that has worked best [to invalidate crappy patents] is Section 101.”