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23 October 2015Americas

AIPLA 2015: Congress more interested in ‘trolls’ than section 101, says BIO

Very few members of Congress are informed about the trajectory of section 101 and instead lawmakers are looking at ‘trolls’ and other patent issues, according to a counsel at the Biotechnology Industry Organization (BIO).

Hans Sauer, deputy general counsel, intellectual property at BIO, claimed that competing patent efforts interfere with meaningful debate on section 101, which deals with patent eligibility.

He was speaking today, October 22, at the AIPLA 2015 Annual Meeting in Washington, DC.

Several high-profile cases including Alice Corporation v CLS Bank and Association for Molecular Pathology v Myriad Genetics have narrowed patent eligibility for certain inventions, causing worry among patent practitioners.

Sauer was taking part in a discussion on “An overview of the impact of Alice across patent preparation, prosecution, litigation, legislation, and post-grant proceedings”.

“We need to find cheerleaders, Congress members who are willing to own the issue of what’s going on with section 101 jurisprudence,” he said. “Policy makers seem entirely absent from this debate right now.”

While the US Patent and Trademark Office feels burdened by 101 and sees problems with its implementation, it is not starting a debate on whether it’s good policy to reject patents covering “a surprising array of inventions that were previously uncontroversial”, for example.

He added that the patent bar is highly alarmed by these developments, but that corporate decision makers seem more relaxed.

“This [section 101] has to be recognised as a problem of true commercial impact,” he urged.

Despite admitting that 101 may not be something that Congress can fix and that “some things are better left for the courts”, with patents increasingly being invalidated by court decisions a legislative solution may be needed.

He added: “Legislative efforts have suffered from a lack of agreement on what the Supreme Court is trying to do. If you have ten people in a room, you will get ten different answers.”

“It’s going to take a lot of work to get a legislative solution,” he continued. “We have a lot of work to do.”

The  AIPLA 2015 Annual Meeting takes place from October 22 to 24 at the Marriott Wardman Park Hotel in Washington, DC.

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