Dave Kappos calls for abolition of Section 101

As reported today in Law360, David Kappos, the former director of the U.S. Patent and Trademark Office on Monday called for the abolition of Section 101 of the Patent Act, which sets limits on patent-eligible subject matter, saying decisions like Alice on the issue are a “real mess” and threaten patent protection for key U.S. industries.

Kappos was quoted by Law360 saying “It’s time to abolish Section 101, and the reason I say that is that Europe doesn’t have 101 and Asia doesn’t have 101 and they seem to be doing just fine in constraining patent-eligible subject matter”.

Kappos, like many others in the patent field, are now recommending that their clients more aggressively seek protection in other countries where protection for biotechnology and software is readily available.

Its a sad commentary to the state of the law when the former Director of the USPTO is recommending to his clients that they seek protection in other countries due to the mess the Supreme Court and the Federal Circuit have made of Section 101.

4 Responses to “Dave Kappos calls for abolition of Section 101”

  1. When the Federal Circuit was first established, the judges went out of there way to make decisions that would help both the USPTO and inventors. The decisions sometimes went beyond the narrow issues to help make something clear. Now the court acts just the opposite.

  2. Saying Europe doesn’t have a 101 is a little inaccurate.
    Europe has Article 52 EPC which excludes, among other things, computer programs and business methods “as such” from patentability.

    This constitutes a more stringent approach to subject matter patentability than the U.S. post-Alice.

    • Cliff says:

      Not really more stringent. It is very possible to get protection for software-based inventions in Europe. “As such” is a big qualifier. And in biotech you also avoid the U.S. 101 issues.

  3. Oren Reches says:

    Even the Israeli Courts are more software-friendly than the USPTO. About a year and a half ago a patent related to a computer that generated multiple media layer was granted. The USPTO also issues 101 rejections on pure hardware patent applications.