Knobbe Martens partner Brenden Gingrich, Ph.D., was quoted by BioWorld Medtech in the article “Former PTO commissioners come out in support of latest US Senate push for patent reform.”
The article discusses how the Patent Eligibility Restoration Act of 2022, which was introduced in August by Senator Thom Tillis (R-NC), represents the latest effort by Congress to rewrite the statute on patent subject matter eligibility.
Gingrich discussed previously released guidance from the U.S. Patent and Trademark Office that would have allowed PTO examiners to avoid rejecting applications over relatively trifling concerns regarding subject matter eligibility under Section 101 of the Patent Act—noting the limited effect it has had on patent examinations: “It is fairly rare for [the PTAB] to raise grounds for rejection that the examiner hasn’t raised.”
Regarding bipartisan support for patent reform, Gingrich said, “The fact that the Supreme Court declined to hear American Axle … provides more impetus to Congress to take this up.”
Gingrich also shared that his advice to clients on potential Section 101 issues is to “keep applications pending in the hope the law will change in the meantime.” He further adds, “Potential applicants may want to consider retaining their technology as a trade secret rather than pursuing a patent.”
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