The shift in § 101 law arising from the Alice decision has created a major problem for the patent community: thousands of patents were issued under the more permissive standard of State Street Bank (even modified by Bilski v. Kappos) and remain in force, yet would be found invalid if litigated. Even worse than the invalidation of previously issued patents, some decades old, is the miasma of uncertainty: since Alice has recast patent-eligibility as a purely subjective determination, the only reliable way to determine patent-eligibility is to litigate the subject patent to the exhaustion of the legal process.
Without proactive efforts to resolve this dilemma, the patent community will grapple with this issue for the lifespan of patents issued before Alice – i.e., until the year 2034 (and longer in some cases, due to patent term extensions). How might the patent community, and the USPTO in particular, undertake a systematic review of the patent-eligibility of pre-Alice patents?
Continue reading Encouraging § 101 Ex-Parte Reexamination of Pre-Alice Patents