Tom Chen in Law360: Patent Eligibility Overhaul Framework May Spur New Fights

04/22/2019

Law360 quoted Haynes and Boone, LLP Partner Tom Chen in an article about how the recently unveiled framework for rewriting patent eligibility law could invite more patent disputes.

Here is an excerpt:

Like the closed list and some other items in the framework, that test is similar to guidance that the U.S. Patent and Trademark Office (USPTO) issued to its examiners earlier this year. That document states that even if an invention is directed to an abstract idea or other ineligible subject matter, it can be patented if it is "integrated into a practical application."

That phrase is another part of a future bill that could spur more litigation. Tom Chen of Haynes and Boone, LLP said the test is a good concept, but added, "I don't know how they can make it more predictable or objective than we have now." …

The similarity between the framework and the USPTO's guidance, which has been widely viewed as relaxing the eligibility standard and reducing the chances of patent applications being rejected, drew a mixed reaction from attorneys.

Chen said he wasn't sure what the legislation can add if it just tracks with how the office is addressing patentable subject matter.

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