SG, PTO Say It's Almost Time to Revisit Patent Eligibility

After a nearly yearlong wait, Solicitor General Noel Francisco is technically turning thumbs down on two hot-button cases involving Section 101 of the Patent Act. But he says there's another one coming next month that the court definitely should take up to address the confusion in the law.

December 09, 2019 at 08:06 AM

5 minute read

Scott Graham

The Solicitor General's Office has spoken: A rethink of the Supreme Court's Section 101 jurisprudence is "amply warranted."

Just not quite yet.

Solicitor General Noel Francisco and the U.S. Patent and Trademark Office recommended Friday that the court deny certiorari in two hot-button cases in which the Supreme Court sought recommendations last winter: Berkheimer v. HP and Hikma Pharmaceuticals USA v. Vanda Pharmaceuticals. The government says a third case, Athena Diagnostics v. Mayo Collaborative Services, which is due for a cert vote as soon as next month, is a better vehicle for clarifying patent eligibility.

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