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Supreme Court Amicus Brief in Support of Certiorari, Rpost Communications Limited, et al. v. GoDaddy.Com, LLC, No. 17-695 (Filed December 5, 2017)

2017; RELX Group (Netherlands); Linguagem: Inglês

10.2139/ssrn.3084365

1556-5068

Raymond Mercado,

Digital Transformation in Law

The Supreme Court’s decisions in Mayo and Alice have “had an extraordinary impact on patent litigation.” Subject matter ineligibility under § 101 was “virtually unknown twenty years ago” as a defense in patent litigation. But since this Court’s rearticulation of the test for eligibility under § 101 in Mayo/Alice, § 101 has become the “most successful” way to challenge a patent’s validity in litigation today. Section 101 is now being raised in hundreds of patent cases “litigated daily (if not hourly) in federal courts across the country.” According to statistics compiled by the former Director of the PTO, David Kappos, Alice “caused a nearly four-times increase in patent invalidation based on subject matter eligibility” under § 101, an area of doctrine marked, in his view, by “problematic confusion and unpredictability.” As one member of the Federal Circuit put it in a moment of exasperation at oral argument, § 101 cases are “a plague on the patent system nowadays.”