On April 18, 2019, Senators Thom Tillis (R-NC) and Chris Coons (D-DE), along with Representatives Doug Collins (R-GA), Hank Johnson (D-GA), and Steve Stivers (R-OH), released a bipartisan framework for 35 U.S.C. § 101 reform, available here.  The framework outlines specific goals that any proposed legislation should aim to address.

The impetus for such reform stems from uncertainties in recent case law regarding what qualifies as “patent-eligible” subject matter since the U.S. Supreme Court’s holdings in Mayo Collaborative Services, DBA v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012), and Alice Corporation Pty. Ltd. v. CLS Bank International, 573 U.S. 208 (2014).  The relative fluidity of patent eligibility jurisprudence since the Court’s decision in Alice has caused difficulties not only for potential inventors and industry, but also for the patent bar at large.  Since the Alice decision, the USPTO has issued new guidance regarding how patent examiners are to analyze claims under section 101 at least once a year, with the exception of 2017.  As many practitioners would attest, the application of the guidance can vary between examiners and art units, resulting in general confusion as to what exactly makes one claim patent eligible over another.
Continue Reading Returning to the Status Quo? – Proposed Outline for Section 101 Reform

A recent federal district court decision denied a motion to dismiss a complaint brought by Artifex Software Inc. (“Artifex”) for breach of contract and copyright infringement claims against Defendant Hancom, Inc. based on breach of an open source software license. The software, referred to as Ghostscript, was dual-licensed under the GPL license and a commercial license. According to the Plaintiff, those seeking to commercially distribute Ghostscript could obtain a commercial license to use, modify, copy, and/or distribute Ghostscript for a fee. Otherwise, the software was available without a fee under the GNU GPL, which required users to comply with certain open-source licensing requirements. The requirements included an obligation to “convey the machine-readable Corresponding Source under the terms of this License” of any covered code. In other words, under the open source license option, certain combinations of proprietary software with Ghostscript are governed by the terms of the GNU GPL.
Continue Reading Important Open Source Ruling Confirms Enforceability of Dual-Licensing and Breach of GPL for Failing to Distribute Source Code