The Supreme Court has denied the recent bid to fix Alice and Section 101 jurisprudence. In two cases that each petitioned for certiorari, Tropp v. Travel Sentry, Inc. and Interactive Wearables, LLC v. Polar Electric Oy, the Federal Circuit affirmed district court decisions holding the asserted patents directed to ineligible subject matter. The Supreme Court’s denial is particularly acute since the Solicitor General recommended that cert be granted. And it is more painful given that this denial follows another recent instance where the Solicitor General also recommended that the Supreme Court take up Alice. Once again, the patent community mourns another lost chance to clear up the mess that has become Alice. But let’s face it—will the Supreme Court ever save us from Alice? . . . The answer is, probably not.
Read MoreOn July 20, in an otherwise unremarkable opinion, the Honorable S. Jay Plager issued a stinging dissent that should resound throughout the patent community—and may, in fact, resound throughout district courts. See Interval Licensing LLC v. AOL, Inc., No. 2016-2502 (July 20, 2018). Interestingly, Judge Plager did not dissent from the majority’s holding itself, but rather concurred in the reasoning of the majority. Instead, and importantly, he dissented in the Federal Circuit’s “continued application of [Alice’s] incoherent body of doctrine.” Judge Plager’s dissent is nothing short of a recommendation that district courts stop applying the Alice doctrine, at least not until resolution of other defenses in the case. Does that matter?
Read More