Search Results for: arthrex

Upcoming USPTO Director?

Patent

A new president makes a lot of appointments.  Although the Patent Office Director is  an important position, it is still a fair way down the list in terms of urgency.  One reason–that most PTO management decisions are not highly political (especially in the R vs D sense).  Unlike for some agencies, President Biden has not vowed to reverse course on any particular USPTO policy. We also have a long tradition of career PTO employees stepping-up and capably leading the agency as Drew Hirshfeld is doing now.  But, it is time for a nomination, and I expect that we’ll see one within the next month or so.

Looking back, President Trump nominated Andrei Iancu toward the end of August; President Obama nominated his first Director David Kappos in June; and President Bush nominated his first Director James Rogan in September.

Meanwhile, the USPTO is holding its PPAC meeting on Thursday, Aug 5, 2021. You can find the agenda and webex link here: https://www.uspto.gov/about-us/events/attend-patent-public-advisory-committee-quarterly-meeting-8

 

 

Protecting Real Innovations by Improving Patent Quality

Patent

Intellectual Property legislation and oversight in the Senate goes through the Intellectual Property Subcommittee of the Judiciary Committee.  On June 22, the Subcommittee heard testimony on the topic of ongoing problems with “low quality patents.”

Written testimony:

Highlighted issues:

  1. It is tough to figure out the status of a patent and identity of the patent owners.
  2. Discussion of the Theranos-Holmes problem (patents issued and asserted even after criminal fraud indictment) — see Contreras Testimony.  But generally, the problem is not seen as fraud but low-quality patents.
  3. Contreras — there should be more focus on reduction to practice at the examination stage.

https://www.judiciary.senate.gov/meetings/protecting-real-innovations-by-improving-patent-quality

 

Found Patentable -or- Not Proven Unpatentable

Patent

= = = =

by Dennis Crouch

In an Inter Partes Review (IPR), the PTAB generally focuses on whether or not the claims have been proven unpatentable.  If the patentee, the PTAB has a general approach of issuing a declaratory order that the claims “have not been shown, by a preponderance of the evidence, to be unpatentable.”  The evidentiary-and-burden caveats from the PTAB leave substantial wiggle room about whether the claims are valid or invalid in any more abstract sense.  We would be better off if the PTAB was able to make a positive statement — concluding that the claims are patentable.

The AIA calls for the Board to “issue a final written decision with respect to the  patentability of any patent claim challenged by the petitioner.”  35 U.S.C. § 318(a).  This portion of the statute suggests to me that the Board’s declaration should be a  more direct decision about patentability.  That interpretation is bolstered by  § 318(b) which suggest that every challenged claim will have either been “determined to be unpatentable” or “determined to be patentable.”

Section 318(b) referred to above particularly calls upon the USPTO director to receive the Board’s decision and then issue an Inter Partes Review Certificate “canceling any claim of the patent finally determined to be unpatentable, confirming any claim of the patent determined to be patentable, and incorporating in the patent by operation of the certificate any new or amended claim determined to be patentable.”  Following the language of the statute, the PTO Director has a practice stating that claims maintained by the PTAB “are found patentable.”  Thus, the Official Certificate appears to makes a claim about patentability (as required by the statute) rather than merely about the level of evidence provided.

In some ways, this is all semantics, but I would suggest that can matter quite a lot to a later tribunal to see a positive statement of patentability as opposed to a caveat filled statement regarding a claim not-proven-unpatentable. At the same time, asking the PTAB to positively rule on patentability suggests opening-the-door to broader patentability questions.

Withdrawn patents.

Patent

Can someone help me understand what’s going on with the rise in withdrawn patents? (FYI – since 2000 the numbers have been growing substantially faster than the rate of new patent issues). 

 

 

 

 

UPDATED: Must a Plaintiff Investigate a Patent’s Validity Prior to Suing for Infringement?

Patent

Updated below to correct an error in my original analysis. -DC

WPEM LLC v. SOTI Inc. (Fed. Cir. 2021)

WPEM sued SOTI for patent infringement based upon its mobile-device software management “Speed Lockdown” tool. The complaint cites MobiControl Version 11 as infringing.  In its answer, SOTI responded with information from its Version 10, which predates the asserted patent as well as other prior art references.  Settlement discussions ensued:

  • Offer 1: P offers to settle for $429k; D says “no, the patent is invalid.”
  • Offer 2: P offers to settle for $150k; D says “no, the patent is invalid” and also sent P a R.11 notification (alleging that the complaint was filed without sufficient investigation and thus in violation of R. 11).
  • Offer 3: P offers to settle for $75k; D says “no, the patent is invalid.”
  • Offer 4: P offers to dismiss the case with prejudice and grant a license if D agrees to dismiss its counterclaims and abandon its request for attorney fees; D says “no.”

P (WPEM) subsequently asked that its case be dismissed with prejudice.  The district court dismissed the case, but also found it exceptional under 35 U.S.C. 285 and awarded attorney fees of  $180k. The primary basis of the district court’s award was WPEM’s failure to conduct sufficient pre-filing investigation and also continuing the case after learning of its frivolous case.  The court wrote:

WPEM conducted no pre-filing investigation into the validity and enforceability of the Asserted Patent.

WPEM, LLC v. SOTI Inc., 2020 WL 555545 (E.D. Tex. Feb. 4, 2020).

UPDATE – I read through the district court case again and found that I had erred in my statement above (now with strikethrough).  Rather, the district court particularly concluded that it “finds nothing exceptional about WPEM’s post-filing conduct.”  The district court considered the progressive settlement offers, but did not find them improper in any way. Id.  

On appeal, the Federal Circuit affirmed — giving deference to the district court’s judgment on exceptional case awards and finding no abuse of discretion. WPEM, LLC v. SOTI Inc., 2020-1483, 2020 WL 7238458, at *1 (Fed. Cir. Dec. 9, 2020)

WPEM’s argument on appeal was that a patentee need not conduct any investigation regarding the validity of its patents prior to filing a lawsuit because a patent is presumed valid and enforceable.  Any invalidity defense is for the defendant.  On appeal, the Federal Circuit did not disagree, but appears to have twisted the district court opinion somewhat.

Contrary to WPEM’s assertion, we do not read the district court’s opinion as failing to account for the presumptions of validity and enforceability. Instead, the court based its award of attorneys’ fees, in part, on the frivolous nature of WPEM’s infringement position (i.e., the substantive strength of WPEM’s litigation position)—an issue that could have easily been foreseen with an adequate pre-suit investigation (i.e., the unreasonable manner in which the case was litigated). As the court reasoned, because the Accused Technology is prior art to the ’762 patent, “if WPEM prevailed on its assertion that the Accused Technology is covered by the Asserted Patent, it would have had the effect of invalidating, rather than infringing, the Asserted Patent.” Because it is undisputed that the Accused Technology is prior art to the ’762 patent, see id., WPEM could not bring a successful infringement suit.

Id. The appellate decision makes logical sense but for the recognition that infringement analysis is a separate and distinct doctrine from anticipation and that the complaint (apparently) does a reasonable job of showing how the accused product actually practices the invention.

The patentee has now petitioned for en banc rehearing with the following two questions:

  1. When a plaintiff is not aware of any reason to question the validity of an issued United States Patent, is that plaintiff allowed to rely on the statutory presumption of validity when filing a patent infringement lawsuit?
  2. While invalidating the claims of a validly issued United States Patent requires clear and convincing evidence, is a District Court allowed to base a finding of exceptionality under §285 for an inadequate pre-suit investigation of patent validity using the lesser standard that the patent is likely invalid when the plaintiff is not aware of any reason to question validity?

[WPEM Petition for Rehearing].

= = =

Fees on Fees: The defendant had asked for $267k in attorney fees, but the district court only knocked-off about $87k of that — but awarding $180k. That $90k portion was the amount SOTI’s attorneys racked-up in drafting and arguing its motion for fees. The district court refused to award fees-on-fees in this case.

The Court understands that, in pursuing a § 285 recovery, parties will inevitably incur additional attorneys’ fees. However, in this case a near doubling of the amount already incurred in fees is simply unreasonable. At some point, a party must be mindful of the use and conservation of judicial and party resources and cannot (after it realizes it will prevail) continue to incur fees far in excess of any proportional relationship to the fees incurred in the merits portion of the case.

WPEM, LLC v. SOTI Inc., 2020 U.S.P.Q.2d 38024 (E.D. Tex. 2020).

= = = =

Bill Ramey is representing the patentee in the appeal; Robert Greeson for the defense.  SOTI has not yet responded to the petition.

Reviewing Summary Judgment for Abuse of Discretion?

Patent

GS Cleantech v. Adkins Energy LLC (Supreme Court 2020)

This pending petition for certiorari focuses on the civil procedure question: What is the standard for review of a partial summary judgment that is not reopened at trial?  Normally summary judgment is reviewed de novo on appeal, but this is a case where the Federal Circuit switched the standard.

The patentee here intentionally failed to disclose its its pre-filing sales-activity to the PTO during prosecution. Those prior sales barred patenting of a number of claims (on sale bar) and the remaining were found unenforceable (inequitable conduct).  That outcome was affirmed on appeal by the Federal Circuit and the court denied a petition for rehearing (without opinion).  Now comes the petition for writ of certiorari. Prof. Hricik and I have both written about the Federal Circuit decision:

Here is the relevant procedure at the district court:

  • Summary Judgment of Invalidity: A number of claims found invalid based upon the GS-Cleantech’s pre-filing commercial offer for sale (made after the invention was ready for patenting).
  • Bench Trial for Inequitable Conduct: The remaining claims were found unenforceable due to inequitable conduct at trial.  Inequitable conduct requires a showing of both intent-to-deceive and that the deception was material to patentability.  At trial, the district court relied upon its summary judgment determination as evidence of materiality.

When appealed, inequitable conduct determinations are generally reviewed for abuse of discretion — providing substantial deference to the district court determination.  The patentee argued that things should be different on the issue of materiality – particularly on the issue of whether the undisclosed prior sales rendered the claims invalid.  The difference here, is that issue was decided on summary judgment, and summary judgment is generally reviewed de novo on appeal.

The Federal Circuit gave full deference — noting that the district court “held an eight-day bench trial in which materiality was squarely before it.”  Further, the district court did not simply apply its prior summary judgment determination but rather it incorporated the summary judgment evidence and admitted additional relevant evidence, including previously unheard testimony relating to materiality and ultimately “confirmed” its summary judgment determination in finding materiality.  On appeal, the Federal Circuit found this sufficient to move the on-sale determination fully under the abuse-of-discretion shelter of the inequitable conduct trial and identified the patentees arguments as lacking nuance. (“This argument is jejune.”).

The patentee also directly appealed the summary judgment of invalidity, but the appellate panel did not hear that issue (which it would have given de novo review). Rather, the appellate panel found the issue moot based upon the unenforceability holding.

All that sets up the current petition for writ of certiorari:

Until the Federal Circuit’s decision in this patent case, every Circuit had held that an issue resolved on partial summary judgment, and not reopened at trial, must be reviewed de novo. Here, the district court resolved the issue of patent invalidity on partial summary judgment, and did not reopen it at trial. Yet, the Federal Circuit expressly refused to review the issue de novo, and instead reviewed it under the “abuse of discretion” standard governing review of the decision at trial.

The question presented is: Whether the Federal Circuit, in cases arising under the Patent Act, may depart from the uniform rule of the other Circuit Courts that an issue resolved on partial summary judgment, and not reopened at trial, must be reviewed de novo on appeal.

[Petition]

Service of Process and Theft of Ideas

Patent

Tracy Nixon v. General Motors (Fed. Cir. 2020).

Nixon sued GM in E.D. Texas, acting pro-se.  The complaint makes the following allegation:

The defendant infringed on the Plaintiffs Design for the Chevrolet Corvette that consisted of the rear trunk LTD Wing, Aerodynamic Full Body Combo Kit, and Hood DAM sold on the 2014-2019 Corvette C7 and Z06 Corvette before the Plaintiff could patent the invention for sale to the public.

Pro Se Complaint.

GM did not make an entry of appearance into the lawsuit and Nixon asked for default judgment. However, Judge Gilstrap refused to enter default judgment — holding that GM had not been properly served with the summons and complaint as required by FRCP 4.

The rule includes several mechanisms for service process, including  “following state law for serving a summons …”   Nixon thought service was proper — Nixon sent the Summons & Complaint to the Texas Secretary of State who forwarded the Summons and Complaint to General Motors HQ via Certified Mail. (See image below). Texas law allows for service-via-SOS in special circumstances, such as where a company is supposed to have a registered agent, but does not have one (or that one isn’t accepting service). See Texas Business Organizations Code § 5.251. (Failure to Designate Registered Agent). A non-Texas company only needs a registered agent in Texas if it “Transact Business” within the state. .

Texas does not make its list of registered agents freely available online, but I just paid for a search and found that General Motors does have a a registered agent in Texas, and that is who should have received service of process.

The District Court denied default judgment, and Nixon immediately appealed to the 5th Circuit who denied appellate jurisdiction for lack of final judgment:

Nixon also appealed directly to the Federal Circuit in parallel who has issued a notice-to-show-cause on whether this is a patent case.  If you remember, Nixon does not have a patent but has sued for theft of the idea.  The court writes:

It appears that this case is not within this court’s limited subject matter jurisdiction. Although this court does have jurisdiction “of an appeal from a final decision . . . in any civil action arising under . . . any Act of Congress related to patents,” it does not appear that Mr. Nixon’s complaint raises a non-frivolous claim arising under the patent laws. See Gayler v. Wilder, 51 U.S. 477, 493 (1850) (explaining that “no suit can be maintained by the inventor against any one for using it before the patent is issued”).

Nor does it appear that transfer to the appropriate federal court of appeals, in this case, the United States Court of Appeals for the Fifth Circuit, would be in the interest of justice. It appears that Mr. Nixon’s request for permission to appeal was initially filed at that court, which issued an order on November 4, 2020 denying his request because “[t]he district court’s order denying the motion for default judgment is not a final order . . . [and] the order has not been certified for immediate appeal under 28 U.S.C. § 1292(b) by the district court.” Nixon v. Gen. Motors Corp., No. 20-90032 (5th Cir. Nov. 4, 2020).

NixonGMOrder.

In the end, Nixon may be left with properly serving GM to get his case moving forward.

Covered Business Method Review: Last Day to File is September 16, 2020.

Patent

Under the 2011 America Invents Act, certain Covered Business Method Patents (CBM) can be broadly challenged as part of a Post-Grant Review (PGR).  CBM filing was opened on September 16, 2012 – 1 year after AIA enactment. So far, about 600 CBM petitions have been filed.

The CBM program is “transitional” — and is set to sunset (i.e., become inactive) soon.  Under the law, the program sunsets “upon the expiration of the 8-year period beginning on the date that the regulations … take effect.”  That takes us to September 16, 2020 — CBM Sunset Date.  The particular language of the law indicates that Section 18 of the AIA is “repealed” as of the sunset date.  However, the provision will still apply to “any petition … filed before the date.”

So, get your petition filed by the 16th of September 2020.

I’ll add a couple of notes.

  1. A powerful aspect of the CBM program is that the patents can be challenged on any ground (including patent eligibility) whereas inter partes review (IPR) proceedings are tightly limited to anticipation and obviousness grounds based upon patents and printed publications.  Post-Grant Review will still be available, but there is a very tight window for filing such a petition (within nine months of patent issuance).
  2. I believe that the last day to file is Sept 16, but I have not fully analyzed this — so do some of your own legwork if you want to wait for the deadline.

Poll:

 

Is Termination a form of Institution (and thus Non-Appealable)

Patent

BioDelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc., fka MonoSol RX, LLC, No. 19-1381 (Supreme Court 2020)

This case is procedural and it focuses – once again – on the unique two-step, two-decision-maker divide by Congress for inter partes review (IPR) proceeding.

  1. Step 1 – Institution: The USPTO Director decides whether to grant an IPR petition and “institute” proceedings.  This decision is “final and nonappealable.”
  2. Step 2 – Trial: Once the IPR is instituted, the PTAB takes-charge and moves the case to a final decision.

As the USPTO planned-out how to actually implement the proceedings, the Director at the time (Kappos) recognized that he didn’t want to personally decide all of the IPR decisions and also recognized that the USPTO petitions office was (is) not operating at peak efficiency (except for the automatically granted petitions). So, the the rules delegated the Director’s authority for instituting IPRs to the PTAB judges.  This effectively rewrote the proceedings as follows:

  1. Step 1: The USPTO Director PTAB decides whether to grant an IPR petition and “institute” proceedings.  This decision is “final and nonappealable.”
  2. Step 2: Once the IPR is instituted the PTAB then takes-charge and moves the case to a final decision.

Delegation of institution authority results in some amount of confusion about whether a given decision by the PTAB is associated with a non-appealable institutional decision or instead an appealable final judgment in the case.

BioDelivery began at the PTAB with three IPR petitions against Aquestive’s US8765167. This was pre-SAS, and the USPTO partially instituted the proceedings.  On appeal, the Federal Circuit vacated the final written decision on SAS grounds — holding that the USPTO cannot partially institute an IPR.  The partial-institution clearly falls on the side of step-1 nonappealable institution decision, but the Supreme Court created a limited exception in this situation.  See SAS Institute v. Iancu, 138 S. Ct. 1348 (2018) as limited by Thryv, Inc. v. Click-to-Call Techns., LP, 140 S. Ct. 1367 (2020).  You can read that original 2018 BioDelivery opinion here BioDelivery Scis. Intl., Inc. v. Aquestive Therapeutics, Inc., 898 F.3d 1205 (Fed. Cir. 2018).

In SAS, the Supreme Court held that at institution stage the Director must either (1) institute the proceeding as to all challenged claims or (2) deny the petition all together. Federal Circuit then extended SAS to also require that any final written decision address every ground for challenge (not just every claim). PGS Geophysical AS v. Iancu, 891 F.3d 1354 (Fed. Cir. 2018).

On remand, the PTAB decided it was faced with the question of whether to (1) proceed with a final decision on all grounds raised or (2) drop the whole case. It chose the latter–terminating all three IPR petitions.

The patent challenger then appealed again and the Federal Circuit had to figure out whether the termination of proceedings was more like an institution decision or a final written decision.  The court decided the former and held that the termination was final and nonappealable.  BioDelivery Scis. Intl., Inc. v. Aquestive Therapeutics, Inc., 935 F.3d 1362 (Fed. Cir. 2019) (opinion by Judge Reyna, dissent by Judge Newman); en banc petition denied at BioDelivery Scis. Intl., Inc. v. Aquestive Therapeutics, Inc., 946 F.3d 1382 (Fed. Cir. 2020) (dissent by Judge Newman).

Now comes the petition for writ of certiorari — arguing that “termination” should not be considered an institution decision. Questions presented:

1. Does the Judiciary have authority to review a Patent Office decision refusing to implement its mandate and this Court’s precedent?

2. May a petitioner appeal a decision terminating an instituted IPR, despite the decision being mislabeled as a nonappealable decision?

[BioDelivery Petition]

Although the situation is muddled by the PTAB/Director delegation, the basic question is whether ‘termination’ of an [improperly] instituted IPR is a furtherance of the institution process given to the discretion of the Director or is it instead a role given by statute directly to the PTAB.  The statute does discuss termination following settlement, but not in the particular context of this case.

The situation also reminds me of the recent essay by Brian Fry and Maybell Romero, The Right to Unmarry: A Proposal,  https://ssrn.com/abstract=3566944.

= = = =

I have included Fig. 1 from the challenged patent above. The claims are directed to an “oral film” that melts-in-your-mouth for drug delivery.  The film includes an “anti-tacking agent” such as vegetable oil or wax.

En Banc Denied

Patent

The Federal Circuit today denied two en banc rehearing petitions:

  • Amgen Inc. v. Amneal Pharmaceuticals LLC. This decision focused on merely-tangential exception to the the prosecution-history-estoppel limitation on the doctrine-of-equivalents.  The question for the petition is whether the district court must first identify the “rationale underlying [a narrowing] amendment” before deciding that the amendment is not merely tangential to the equivalent in question.
  • Mira Advanced Technology v. Microsoft Corporation.  Whether the PTAB’s construction of the term “contact list” was “arbitrary and capricious.”

 

Self Anticipation Dooms Chamberlain Patent

Patent

The Chamberlain Group, Inc. v. One World Techs, DBA Techtronic Indus. (Fed. Cir. 2019)

This case involves the same parties as my recent post on disavowal. Dennis Crouch, Disavowal: Case Closed Once the Inventor Manifests That the Invention Includes a Particular Aspect, Patently-O (December 12, 2019). This particular dispute an inter partes review (IPR) challenge of Chamberlain’s U.S. Patent No. 7,196,611 (garage door opener learning mode).

In its final written decision, the PTAB sided with the patent challenger — finding all challenged claims (18-25) anticipated by a prior Chamberlain patent, U.S. Patent No. 4,638,433 (Schindler).  On appeal, the Federal Circuit has affirmed — finding that substantial evidence supported the Board’s factual conclusion of Anticipation.

Although not express in the claims, the specification focuses the invention on setting a “max run timer” —  “the amount of time for the door to move between its open and closed limits, plus five to ten seconds.” In its decision, the Federal Circuit described the process as follows:

First, the user presses a button on the controller to enter learn mode. Next, the controller identifies the proper beginning status for the door and the steps the user must complete to set the timer. Finally, the controller guides the user through the identified steps by flashing the appropriate indicator LED for each step. For example, if the step requires the user to open the door, the controller will flash the open limit LED. Once the user completes all the steps, the controller counts the time for the door to travel from its closed limit to its open limit, adds five to ten seconds, and records that value as the max run timer.

Claim 18 – at issue here – is not expressly limited to the “max run timer” setup, but does follow the aforementioned process with its four-step method for “assisting in the installation and maintenance” of a garage door opener (“barrier movement operator”).

  • turning-on “learn mode”;
  • identifying by the controller the present “state” of the opener;
  • identifying by the controller activities to be completed by a user; and
  • responsively transmitting guidance signals to an “annunciating unit” to provide guidance to the user.

The prior art patent (Schindler) focuses on a different learning mode – programming the upper and lower limits for the garage door movements.  Schindler uses the same “annunciating unit” (i.e., flashing lights) to communicate which limits are being programmed.

The appeal here focused on whether Schindler disclosed activities (plural) to be completed by the user or only one activity (singular).  The Federal Circuit confirmed that the Board had it right — Schindler discloses having the user both set an “up limit” and a “down limit.”  One issue here is that Schindler first identifies one of the activities and then later identifies the second activity.  On appeal, the Federal Circuit held that the claims do not have any timing requirement:

We agree with the Board that nothing in claim 18 “requires the activities to be identified together or at the same time.” . . . Given the absence of any timing limitation, the Board reasonably found that “Schindler’s disclosure of transmitting the signals in sequence, one after the other in response to the previously-completed steps of identifying the garage door operator’s present status and activities to be completed” teaches the “responsive to” step.

Slip Op.

What’s going on here? Knowing Chamberlain’s history of pushing the limits of its IP protections, it looks to me like the company was using this new patent to extend of its old Schindler patent that was approaching expiration. Although Chamberlain may have something patentable here, that needed to be reflected in the claims.

En Banc at the Federal Circuit

Patent

The Federal Circuit this week denied two interesting petitions for en banc rehearing:

Kingston Technology Company v. SPEX Technologies, Inc., Docket No. 19-1342 (Fed. Cir. 2019)

Does WiFi One apply only when the patentee is appealing and not when the IPR petitioner appeals an institution denial?

In this case, the PTAB held that § 315(e) estopped Kingston from petitioning for IPR. Had the Board decided in Kingston’s favor, the patent holder (SPEX) could have appealed under Wi-Fi One. However, the panel found that an orthogonal Board decision against the patent owner was not appealable.

Genzyme Corporation v. Zydus Pharmaceuticals (USA), Docket No. 18-02362 (Fed.
Cir. 2019)

Whether a patent-challenger asserting obviousness must prove that a POSA would have had a reasonable expectation of success as to achieving unclaimed features, such as achieving alleged unexpected results that are not recited in the asserted claims.

The patent challenger here argues that “[t]ying the reasonable expectation of success inquiry strictly to the claims as written ensures that courts do not decide obviousness on hypothetical claims that are fundamentally narrower than the actual claims at issue.”

Earlier this month, the Federal circuit also denied a well written petition in Board of Regents v. Boston Scientific Corporation, Docket No. 18-01700 (Fed. Cir 2019)

1. Whether the patent venue statute, 28 U.S.C. § 1400(b), dictates venue in state party patent infringement cases.

2. Whether state sovereignty includes the right to not litigate in a nonresident defendant’s home state (and hence the right to choose any forum with the requisite subject matter and personal jurisdiction).

3. Whether a federal transferee court can acquire jurisdiction over a state without its consent or waiver of any objection to such court’s jurisdiction

En banc petitions are still pending in several cases:

Both the Chamberlain Group and American Axle case have been mentioned to me by PTO/Congressional leaders as examples of how Alice has gone too far.

In American Axle, the patent is at issue, U.S. Patent 7,774,911, relates to “automotive driveshafts used in pickup trucks — claiming “novel and unconventional methods of manufacturing improved driveshafts that include ‘liners’—low cost, hollow tubes made of a fibrous material (such as cardboard).” Petition.  The courts found the claims ineligible as directed to “Hooke’s law, and possibly other natural laws.”