Passing the Buck

A short note on a theme with long legs. We talk, from time to time, about patentability under Section 101. In a recent case out of the Eastern District of Virginia, plaintiff attempted to argue that the question of patentable subject matter—specifically, whether or not the claimed invention was an abstract idea not eligible for patenting—was a legal one, and should not have been put to the jury. Finding that the plaintiff had failed to point to any authority stating that a judge must decide the question of patentability under Section 101, the Court found that when the issue of validity depends upon the resolution of a factual dispute, a jury is permitted to decide the issue.

Since it would appear that no one seems to understand the metes and bounds of patentability under Section 101, with the case law presently in flux, a jury can hardly fare any worse—or better.

Posted by Stacy Stitham