Supreme Court Amicus Brief in Support of Certiorari, Rpost Communications Limited, et al. v. GoDaddy.Com, LLC, No. 17-695 (Filed December 5, 2017)

Abstract

The Supreme Court’s decisions in Mayo and Alice have “had an extraordinary impact on patent litigation.” Subject matter ineligibility under § 101 was “virtually unknown twenty years ago” as a defense in patent litigation. But since this Court’s rearticulation of the test for eligibility under § 101 in Mayo/Alice, § 101 has become the “most successful” way to challenge a patent’s validity in litigation today. Section 101 is now being raised in hundreds of patent cases “litigated daily (if not hourly) in federal courts across the country.” According to statistics compiled by the former Director of the PTO, David Kappos, Alice “caused a nearly four-times increase in patent invalidation based on subject matter eligibility” under § 101, an area of doctrine marked, in his view, by “problematic confusion and unpredictability.” As one member of the Federal Circuit put it in a moment of exasperation at oral argument, § 101 cases are “a plague on the patent system nowadays.”

Yet there is a yawning gap between this “new normal” of patent litigation, and the statutory text that governs it. As Petitioners rightly contend, the heading of 35 U.S.C. § 101 does not specify it as a “condition for patentability” and therefore it is not available as a litigation defense under 35 U.S.C. § 282. There is a chasm between the plain text of § 282 and § 101 that the decisions in this case, and in Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306 (Fed. Cir. 2015), simply cannot bridge.