IP Law Bulletin

We live in challenging times, yet we have the opportunity and the means to flourish, and should do so.

In 1966, Senator Robert F. Kennedy faced the challenges of his era and recalled an ancient curse, which says “May he live in interesting times.” Senator Kennedy observed “Like it or not, we live in interesting times. They are times of danger and uncertainty; but they are also the most creative of any time in the history of mankind. And everyone here will ultimately be judged - will ultimately judge himself – on the effort he has contributed to building a new world society and the extent to which his ideals and goals have shaped that effort.” Senator Kennedy saw opportunity in adversity.

Although we face different challenges than those faced by Senator Kennedy, we can draw from the Senator inspiration to flourish in our own interesting and uncertain times. We too live in the most creative of any time in history, and our management and shareholders will judge us on how well we continue to contribute to the business.

Bob Dylan famously sang that “[y]ou don’t need a weatherman to know which way the wind blows,” and we don’t need a weatherman to tell us that the wind now blows differently at the United States Patent and Trademark Office (USPTO). On January 7, 2019, the USPTO released revised subject matter eligibility examination guidance (“Guidance”), foreshadowed by USPTO Director Iancu last fall. The Guidance is noteworthy both for raising the bar in examination procedure and, we think, for signaling the Office’s intent to rein-in the application of subject matter ineligibility analysis (“lest it swallow all of patent law” – Alice). We anticipate a reduction in subject matter eligibility rejections because the Guidance makes it more difficult for examiners to reject claims as being directed to unpatentable subject matter under 35 U.S.C. §101.