Eric Alan Stone and Catherine Nyarady Court Requests Solicitor General's Views in Patent Eligibility Case
In this edition of their Intellectual Property Litigation column, Eric Alan Stone and Catherine Nyarady discuss 'American Axle & Mfg. v. Neapco Holdings', where the Supreme Court is considering a petition in a Patent Act §101 case in which the Federal Circuit split six-to-six in denying rehearing en banc. The Supreme Court recently called for the views of the Solicitor General.
July 13, 2021 at 12:45 PM
9 minute read
Section 101 of the Patent Act defines the subject matter that is eligible for patenting. Nearly 10 years ago, in Mayo and Alice, the Supreme Court established a two-step test for eligibility under §101. The Federal Circuit's subsequent application of that test has met criticism from legal commentators and from members of the court, with now-Chief Judge Moore recently calling the court "bitterly divided" on this issue. The Supreme Court nevertheless denied certiorari in several recent §101 cases, including one involving a "unanimous" "plea for guidance" from the Federal Circuit.
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