Time For High Court To Clarify Presumption Of Patent Validity

By Charles Macedo and Sandra Hudak, Amster Rothstein & Ebenstein LLP (April 25, 2017, 5:09 PM EDT) -- In Microsoft Corp. v. i4i LP, 564 U.S. 91 (2011), the U.S. Supreme Court considered the role of the presumption of validity for patents, codified in 35 U.S.C. § 282. The Supreme Court's discussion of this presumption clarified that it applies not only to validity challenges under 35 U.S.C. §§ 102, 103 and 112, but also to patent-eligibility challenges under 35 U.S.C. § 101. But despite this clear guidance from the highest court, a divergent concurring opinion by Federal Circuit Judge Haldane Robert Mayer in Ultramercial Inc. v. Hulu LLC, 772 F.3d 709 (Fed. Cir. 2014), has resulted in confusion and division in the lower courts. In Broadband iTV Inc. v. Hawaiian Telcom Inc. et al., No. 16-1241 (cert petition filed April 13, 2017) ("BBiTV"), the Supreme Court is being asked to clarify this confusion and confirm that the statutory presumption of validity set forth in Section 282 in fact applies to Section 101, like it applies to other challenges to patent validity. The failure of the Federal Circuit to correct the confusion caused by Judge Mayer's concurrence has resulted in the need for the Supreme Court to intervene....

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