Top 5 Intellectual Property News Stories of 2014 and Future Impact January 20th, 2015Patents/IP By Bryan D. Stewart, Daniel E. Sineway, John R. Harris, and Lee Strasburger. Last year was a big year for the intellectual property community. Landmark cases in patent law and other developments will shape the intellectual property portfolios of companies doing business in the United States for years to come. For more on the biggest intellectual property developments of 2014 and their impact on your business in 2015, read below. 1. Alice v. CLS Bank Heralded by some as the savior of software patents and by others as a limitation on the protections available for software inventions, the Supreme Court’s Alice decision was the most anticipated Supreme Court patent case in recent history. The lower courts have struggled with the patentability of software and business methods and the Supreme Court had an opportunity in Alice to provide clarity to courts and patent system stakeholders. Instead, the Supreme Court, in its June 2014, unanimous decision, used vague language invalidating the patents at issue but refused to create bright line rules and to create a workable test for determining patent eligibility, causing further confusion for lower courts and stakeholders. There are no subject matter eligibility patent cases currently pending at the Supreme Court, so it appears lower courts and the U.S. Patent & Trademark Office will be left to sort out the metes and bounds of patent eligibility for the foreseeable future. In this time of uncertainty for software and business method patents, patent prosecution and litigation strategies should be carefully considered and scrutinized. Further reading: Opinion; SCOTUSblog 2. Federal Circuit Rulings Interpreting Alice The Court of Appeals for the Federal Circuit, the only Federal Court of Appeals that reviews patent cases, was reversed in 83% of its cases that were reviewed by the Supreme Court during October Term 2013. The Federal Circuit has begun to respond to the newest Supreme Court precedents and will continue to push back against the Supreme Court in 2015. DDR Holdings v. Hotels.com represents the first post-Alice decision at the Federal Circuit upholding the validity of computer-implemented business method claims. With this decision, the Federal Circuit signaled that software patents are alive and well, but did not yet provide a bright line test. In contrast, in Ultramercial v. Hulu, the Federal Circuit invalidated its two prior rulings that the patent at issue contained patent eligible computerized business method claims and held that the claims were directed to a patent-ineligible abstract idea. Thus, the patent community is still awaiting a meaningful response to Alice, which will hopefully arrive in 2015 and will shape patent eligibility for software and computer-implemented inventions going forward. In the meantime, MMM intellectual property litigators, with experience as lead counsel in the courts of more than 35 states and U.S. territories, are prepared to navigate the murky legal waters surrounding the Alice decision on your behalf. Further reading: DDR Holdings Opinion; Ultramercial Opinion 3. Midterm Elections and Patent Reform After the 2014 midterm elections, the Republican Party holds 54 seats in the U.S. Senate and 247 seats in the U.S. House, the largest Republican majority in Congress in almost a century. While the 114th U.S. Congress will undoubtedly produce landmark legislation, it is unlikely to produce any meaningful patent legislation in 2015. Currently, most of the focus of patent reform is to combat the perceived threat to American companies and innovation from litigation involving non-practicing entities (i.e., patent trolls). Accordingly, any legislation currently under consideration focuses heavily on patent litigation reforms. The dust is still settling from the last major patent legislation, the America Invents Acts (AIA), which took years to pull together, and Congress has much higher priorities right now (e.g., the Keystone Pipeline), so meaningful patent reform is likely still a ways away. Depending on the climate surrounding the Presidential Elections, look for patent legislation in 2016. Further reading: The Hill 4. USPTO Rules Interpreting Alice In December 2014, the USPTO issued guidelines for judging patent eligibility based on some of the Supreme Court’s recent decisions, including Alice. These guidelines, which are meant only to assist the patent examiners, provided minimal direction and insight into the process that the USPTO will use to evaluate software patents and are meant to supplement those guidelines already in place at the USPTO, including a set from March 2014. Without clear jurisprudence from the Supreme Court and the Federal Circuit, the USPTO will be unable to develop any helpful guidelines relating to patent eligibility in 2015. MMM patent prosecutors filed 616 patent applications last year (both domestically and internationally) and received 377 issued patents. Additionally, we have already begun handling Alice rejections. Thus, we are more than prepared to help you with your patent prosecution goals for 2015. Further reading: Rules; PATENTLYO 5. Google v. Oracle A shock to many in the programming world, Google v. Oracle is, at this point, a copyright infringement case involving APIs. During its development of the Android platform, Google intentionally imitated the method call structure of Java, which Google believes are not subject to copyright protection. In May 2014, the Federal Circuit held that the method call structures were copyrightable. Accordingly, Google petitioned the Supreme Court to determine whether that imitation was copyright infringement. On January 9, 2015, the Supreme Court requested the views of the Obama administration (i.e., the Solicitor General) regarding the case. While not a guarantee that the case will be heard by the Supreme Court, this latest development does indicate that the Supreme Court may weigh in on APIs and copyright law in 2015. More to come on Google v. Oracle in the near future. Further reading: SCOTUSblog The above items, and others not discussed, illustrate that issues with U.S. patent law are hotter than ever. The law certainly will continue to evolve well beyond 2014. Well-considered patent strategies need to be implemented to hedge against this volatility. Consult an IP attorney at MMM with questions or concerns.