In a recent decision concerning a patent claim, a judge on the U.S. Court of Appeals for the Federal Circuit cited a scholarly article by Professor Amy Landers that cites a lack of coherent policy goals in legal decisions involving inventions.
On July 27, the U.S. Court of Appeals for the Federal Circuit rejected a claim by Interval Licensing LLP that AOL, Apple, Google and Yahoo infringed on its patent for a system accessing and exhibiting information on display devices.
The judges determined that Interval Licensing had not identified a specific unique technical advance that its system provided.
Judge S. Jay Plager wrote a separate opinion that partly concurred with and partly dissented from the majority decision, citing Landers’ 2015 article, “Patentable Subject Matter as a Policy Lever,” which was published in the Houston Law Review.
Landers notes in the article that the legal definition of invention is hard to pin down and that many factors influencing patent decisions “are susceptible to interpretation” that do little to establish a policy that supports innovation. The article observes that Supreme Court rulings on patent matters have relied on precedents that were written at a time that predates contemporary understandings of scientific, economic and sociological systems.
“Recent U.S. Supreme Court opinions have not used the doctrine to meaningfully guide the patent system,” Landers wrote. “These decisions appear to be untethered from necessary policy choices to ensure a workable system.”
Plager cited Landers’ article in his opinion, contending that “an incoherent legal rule …led to arbitrary outcomes.” As a result, Plager said, the law “renders it near impossible to know with any certainty whether the invention is or is not patent eligible.”
Landers, the director of the law school’s Intellectual Property Law program, is the author of “Understanding Patent Law,” now in its third edition.