Wow, lots of new amicus in the patent eligibility case of American Axle v. Neapco, including a joint filing from Sen. Thom Tillis, Hon. Paul Michel, and Hon. David Kappos. The trio argue that the current state of patent eligibility doctrine is “an unintelligible hash” causing significant systemic problems. [Tillis Brief] Kappos addition to the brief is symbolically important. His name is memorialized in Bilski v. Kappos, the case that seemingly re-started us down this pathway. The brief offers an interesting approach — it is filled with quotes from policymakers about the problems created by the shift in patent eligibility laws. Many of the quotes appear hyperbolic, but it is hard to tell in this situation whether they are simply reflecting reality.
Professors Lefstin (Hastings) and Menell (Berkeley) add their own hyperbole noting that in this case, the Federal Circuit has stretched “Section 101 to absurd lengths.” A common law professor trope is to talk through the absurdity that ensues when a given rule is taken to an extreme. Here, the professors are noting instead that absurdity has arrived. [Lefstin Mennell Brief]
American Axle filed its petition for writ of ceritorari back in December 2020. Neapco initially waived its right to respond. However, the Supreme Court requested a response that is now due March 31, 2021. Meanwhile, ten friend-of-the-court briefs have been filed supporting certiorari:
- Petition for a writ of certiorari filed
- Brief amicus curiae of New York Intellectual Property Law Association
- Brief amicus curiae of Alliance of U.S. Startups & Inventors for Jobs
- Brief amici curiae of The Chicago Patent Attorneys filed.
- Brief amicus curiae of New York City Bar Association filed..
- Amicus brief of Professors Jeffrey A. Lefstin and Peter S. Menell submitted.
- Amicus brief of Ameranth, Inc. submitted.
- Amicus brief of Biotechnology Innovation Organization and AUTM submitted.
- Amicus brief of Jeremy C. Doerre submitted.
- Amicus brief of United States Senator Thom Tillis, Honorable Paul R. Michel and Honorable David J. Kappos submitted.
- Amicus brief of Houston Intellectual Property Law Association submitted.
If the court has interest in the case, I would expect a call for the views of the Solicitor General (CVSG) sometime in April. Of course, a prior SG already provided views in a recent patent eligibility case: “The Court’s recent Section 101 decisions have fostered substantial uncertainty.” – U.S. Solicitor General, Noel J. Francisco (2019).