Should § 101 Legislation Include An Extension Or Revamp Of The CBM Program?

Is the little-used CBM patent review program the key to passage of § 101 legislation?

Congress is currently considering legislation to drastically alter the patent eligibility statute, 35 U.S.C. § 101.

The unabashed intent of the proposed legislation is to expand what is patentable under § 101, and a draft bill would expressly abrogate any case that has interpreted the "abstract idea" exception and the other judicially-created exceptions to patent-eligible subject matter.

Supporters believe a re-work of § 101 is critically necessary because the courts are interpreting the current statute too narrowly, resulting in greatly decreased research, development, and innovation in areas like medical diagnostics and artificial intelligence. Opponents argue, however, that expanding § 101 patent-eligible subject matter will result in a resurgence of weak patents and nuisance-value patent infringement suits.

Perhaps concerns about an expansion of § 101 patent-eligibility could be alleviated to some extent if the legislation includes simultaneous tweaks to the CBM patent review program—giving parties that are sued or charged with infringement a greater opportunity to raise § 101 challenges at the PTAB.

In its current form, CBM patent review:

is broader in scope than in an IPR—a CBM can include any unpatentability ground, including patent-eligibility challenges under § 101, and is not confined to §§ 102 and 103 prior art grounds like IPRs; is limited to patents having claims "used in the practice, administration, or management of a financial product or service," and that do not claim a "technological invention"; may only be brought by a party or real-party-in-interest that has been sued or charged with infringement of an eligible patent; is a transitional program only, with a "sunset" date in September 2020. The CBM program was intended as a streamlined and temporary method for weeding out low-quality business method patents in the financial services industry. Since it became available in September 2012, the CBM program has been relatively infrequently used. CBM petition filings have trended consistently downward over the last 6 years. Indeed, through the first-half of 2019, not a single CBM petition was filed in 5 out of the last 6 months.

The unpopularity of...