Thursday, September 15, 2011

ULTRAMERCIAL : The “coarse eligibility filter” of § 101 should not be used to invalidate patents...

Within the decision: The “coarse eligibility filter” of § 101 should not be used to invalidate patents based on con- cerns about vagueness, indefinite disclosure, or lack of enablement, as these infirmities are expressly addressed by § 112.

The opinion, written by Chief Judge Rader, works through recent thinking on 35 USC 101.

A claim that began:

A method for distribution of products over the Internet via a facilitator, said method comprising the steps of: (...)

survived 101.

Yes, Bilski was mentioned:

In Bilski, the Supreme Court explained that “[i]n choosing such expansive terms modified by the comprehensive ‘any,’ Congress plainly contemplated that the patent laws would be given wide scope.” 130 S. Ct. at 3225 (quoting Diamond v. Chakrabarty, 447 U.S. 303, 308 (1980)). After all, the purpose of the Patent Act is to encourage innovation, and the use of broadly inclusive categories of statutory subject matter ensures that “ingenuity . . . receive[s] a liberal encouragement.” Chakrabarty, 447 U.S. at 308.


Moreover, title 35 does not list a single ineligible category, suggesting that any new, non- obvious, and fully disclosed technical advance is eligible for protection, subject to the following limited judicially created exceptions.

In line with the broadly permissive nature of § 101’s subject matter eligibility principles, judicial case law has created only three categories of subject matter outside the eligibility bounds of §101—laws of nature, physical phenomena, and abstract ideas. Bilski, 130 S. Ct. at 3225.


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