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24 October 2022FeaturesPatentsPhil Harris

Why patent eligibility is ripe for SCOTUS review

In yet another interesting patent eligibility case, the  Supreme Court has once again requested input and insight from the US solicitor general.

The patentee in Tropp v Travel Sentry obtained claims directed to “[a] method of improving airline luggage inspection by a luggage screening entity”.

The claims included features of “making available to consumers a special lock having a combination lock portion and a master key lock portion”, and “marketing the special lock to the consumers in a manner that conveys to the consumers that the special lock will be subjected by the luggage screening entity [eg, the Transportation Security Administration (TSA)]”, among others.

This call for solicitor general comments is significant because this is now the third recent patent eligibility case with such a request from the court.

Second opinion

The other recent cases include American Axle v Neapco and Interactive Wearables v Polar Electro. First, in a somewhat disappointing, although not too surprising decision, the court in American Axle denied cert in June this year despite the federal government’s strong support of hearing the case to clarify Section 101.

There, the government even provided the justices with multiple lines of reasoning to take up the case due to the technology at issue—methods of manufacturing propshafts with mechanical liners—by explaining “[i]ndustrial techniques [such as those claimed in American Axle] have long been viewed as paradigmatic examples of the ‘arts’ or ‘processes’ that may” be protected, and that the court should be “sceptical” of any assertion that claims traditionally viewed as patentable (such as those in American Axle)—are ineligible under § 101.

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