After reflecting upon the events of the past twelve months, Patent Docs presents its 14th annual list of top patent stories.  For 2020, we identified eight stories that were covered on Patent Docs last year that we believe had (or are likely to have) a significant impact on patent practitioners and applicants.  On Monday, we counted down stories #8 to #5, and today we count down the top four stories of 2020.  As with our other lists (2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, 2008, and 2007), links to our coverage of these stories (as well as a few links to articles on related topics) have been provided in case you missed the articles the first time around or wish to go back and have another look.  As always, we love to hear from Patent Docs readers, so if you think we left something off the list or disagree with anything we included, please let us know.  In addition, we will be offering a live webinar on the "Top Patent Law Stories of 2020" on January 20, 2020 from 10:00 am to 11:15 am (CT).  Details regarding the webinar, which will focus on a few of the most important stories on this year's list, can be found here.

4.  Arthrex and Other PTAB Developments

In October, the Supreme Court granted petitions for a writ of certiorari to review the Federal Circuit's decision in Arthrex, Inc. v. Smith & Nephew, Inc., in which the Court of Appeals determined that the manner in which administrative patent judges were appointed to the Patent Trial and Appeal Board violated the Appointments Clause of the Constitution (Art. II, sec. 2, cl. 2).  A decision in the case is likely to be issued by the Supreme Court this June, so it is quite possible that Arthrex will make our 2021 list.

In addition to Arthrex, there were several other developments involving the PTAB that occurred in 2020.  In Facebook, Inc. v. Windy City Innovations, LLC, Facebook tried to join its own IPR to attack the claims asserted against it, which worked before the PTAB, but not before the Federal Circuit, which determined that joinder was only permitted for other parties who were seeking review of the same issues, and not for the same party seeking to change the scope of the review.  In Bozeman Financial LLC v. Federal Reserve Bank, the Federal Circuit held that the twelve regional Federal Reserve Banks, which sought to invalidate two Bozeman Financial patents in covered business method (CBM) review proceedings, are "persons" under the AIA, and therefore entitled to seek PTAB review.  In Argentum Pharmaceuticals LLC v. Novartis Pharmaceuticals Corp., Pfizer Inc. v. Chugai Pharmaceuticals Co., and Adidas AG v. Nike, Inc., the Federal Circuit continued its explication of the standing issue for unsuccessful petitioners in inter partes reviews.  In Amneal Pharmaceuticals LLC v. Almirall, LLC, the Federal Circuit determined that attorney's fees and an exceptional case determination were not available for fees and costs incurred when a patent owner defends an inter partes review challenge before the PTAB.  And in Uniloc 2017 LLC v. Hulu, LLC, the Federal Circuit found that the PTAB may consider patent eligibility under 35 U.S.C. § 101 for substitute claims.

For information regarding this and other related topics, please see:

• "Supreme Court to Consider Constitutional Propriety of Appointment of PTAB Judges," October 13, 2020
• "Snyders Heart Valve LLC v. St. Jude Medical, LLC (Fed. Cir. 2020)," September 9, 2020
• "USPTO Initiates Fast-Track Appeals Pilot Program," August 11, 2020
• "Uniloc 2017 LLC v. Hulu, LLC (Fed. Cir. 2020)," July 26, 2020
• "Arthrex Files Certiorari Petition in Arthrex Case, July 19, 2020
• "Arthrex Files Certiorari Petition in Arthrex Case," July 14, 2020
• "U.S. Government Petitions for Certiorari in Arthrex Case," July 13, 2020
• "Smith & Nephew File Certiorari Petition in Arthrex Case," July 12, 2020
• "In re Boloro Global Ltd. (Fed. Cir. 2020)," July 9, 2020
• "Adidas AG v. Nike, Inc. (Fed. Cir. 2020)," June 28, 2020
• "Supreme Court Takes Pass on Considering IPR Constitutionality," June 24, 2020
• "Amneal Pharmaceuticals LLC v. Almirall, LLC (Fed. Cir. 2020)," June 8, 2020
• "Pfizer Inc. v. Chugai Pharmaceuticals Co. (Fed. Cir. 2020)," May 5, 2020
• "Argentum Pharmaceuticals LLC v. Novartis Pharmaceuticals Corp. (Fed. Cir. 2020)," May 3, 2020
• "Thryv, Inc. v. Click-to-Call Technologies, LP (2020)," April 20, 2020
• "Bozeman Financial LLC v. Federal Reserve Bank (Fed. Cir. 2020)," April 15, 2020
• "Nike, Inc. v. Adidas AG (Fed. Cir. 2020)," April 13, 2020
• "Genentech, Inc. v. Iancu (Fed. Cir. 2020)," March 30, 2020
• "Facebook, Inc. v. Windy City Innovations, LLC (Fed. Cir. 2020)," March 22, 2020
• "Naples Roundtable Requests PTAB to Make Decisions Precedential," March 20, 2020

3.  But cf. American Axle & Mfg. v. Neapco Holdings LLC

In contrast with past years, there was some sense that fewer "major" developments occurred with respect to subject matter eligibility in 2020.  For example, stories involving subject matter eligibility took the #2 and #5 spots on our 2019 list; the #2 spot on our 2018 list; the #1, #2, and #4 spots on both our 2016 and 2015 lists; the #1 and #2 spots on our 2014 list; and the #1 spot on our 2013 list.  And yet, our #2 and #3 stories for 2020 involve subject matter eligibility.

Coming in at #3 is American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, where the Federal Circuit issued an interesting (and somewhat troubling) decision on the patent eligibility of claims directed to a method for manufacturing a shaft assembly of a driveline system.  In October 2019, a divided panel of the Federal Circuit affirmed a District Court finding of patent ineligibility.  The Court of Appeals then denied rehearing en banc.  And in August, the Federal Circuit withdrew its original opinion and handed down a substitute opinion in response to the petition for rehearing and rehearing en banc (as the Federal Circuit also did in IIllumina, Inc. v. Ariosa Diagnostics, Inc.).  The Federal Circuit followed this practice in what we wrote at the time was perhaps its most confusing and controversial application of the Supreme Court's subject matter eligibility jurisprudence under Alice Corp. Pty. Ltd. v. CLS Bank International.  Judge Moore, writing in dissent, expressed the view that the Federal Circuit had embarked on a course that resembles "enablement on steroids" and "turns the [Section 101] gatekeeper into a barricade.  In October, the Federal Circuit followed up its substitute opinion by denying American Axle's motion to stay issuance of the Court of Appeals' mandate while awaiting the Supreme Court's decision on American Axle's petition for certiorari.

For information regarding this and other related topics, please see:

• "American Axle & Manufacturing, Inc. v. Neapco Holdings LLC (Fed. Cir. 2020)," October 25, 2020
• "American Axle & Mfg. v. Neapco Holdings LLC (Fed. Cir. 2020)," August 9, 2020

2.  Nothing to See Here -- Congress and Courts "Move Along" on Patent Eligibility

Aside from American Axle & Manufacturing, Inc., however, Congress and the courts appeared to "move along" on subject matter eligibility.  In January, the Supreme Court entered orders denying certiorari in five cases having petitions on subject matter eligibility, including Athena Diagnostics, Inc. v. Mayo Collaborative Services, LLC; Hikma Pharmaceuticals USA Inc. v. Vanda Pharmaceuticals Inc.; and Berkheimer v. HP Inc.  One possible conclusion is that the Court is comfortable with the state of diagnostic method patenting (i.e., it no longer exists in the U.S.).  Or perhaps the Court believed that its decision not to decide would motivate Congress to change the law.  Or maybe the Court was facing up to the reality that it did not have a solution to the problem, in which case Congress would be the only answer.  That last hope appeared to have been dashed (or at least put on hold) in February when Senator Thom Tillis, Chair of the Senate's Subcommittee on Intellectual Property, in an interview with the Intellectual Property Owner's association, noted that Congress would not be completing its work on a legislative solution to the patent eligibility problem.  Sen. Tillis told the IPO that "[g]iven the reasonable concerns that have been expressed about the draft [legislation] as well as the practical realities of the difficulty of passing legislation, absent stakeholder consensus I don't see a path forward for producing a bill—much less steering it to passage—in this Congress."  Sen Tillis noted that "[i]f we're going to get anything done on this issue, everyone will have to compromise," adding that "[a]nything less than that is dead on arrival."  So, 2020 provided no judicial or legislative solutions to the patent eligibility problem, and yet this lack of solutions was still good enough for this story to take the #2 spot on our list (which somehow seems fitting for 2020).

For information regarding this and other related topics, please see:

• "Simio, LLC v. FlexSim Software Products, Inc. (Fed. Cir. 2020)," December 29, 2020
• "Adaptive Streaming Inc. v. Netflix, Inc. (Fed. Cir. 2020)," December 22, 2020
• "An Analytic Approach to Patent Eligibility," December 16, 2020
• "Gree, Inc. v. Supercell Oy (Fed. Cir. 2020)," December 3, 2020
• "C R Bard Inc. v. AngioDynamics, Inc. (Fed. Cir. 2020)," November 15, 2020
• "On the Patent Eligibility of Graphical User Interfaces: Part II," November 9, 2020
• "On the Patent Eligibility of Graphical User Interfaces: Part I," November 8, 2020
• "Stupid § 101 Tricks," November 1, 2020
• "Realtime Data LLC v. Reduxio Systems, Inc. (Fed. Cir. 2020)," October 26, 2020
• "Reconsidered: The Federal Circuit's Enfish Interpretation of Mayo-Alice," September 13, 2020
• "Illumina, Inc. v. Ariosa Diagnostics, Inc. (Fed. Cir. 2020)," August 3, 2020
• "XY, LLC v. Trans Ova Genetics, LC (Fed. Cir. 2020)," August 2, 2020
• "The Three Properties of Patent-Eligibility: An Empirical Study," July 30, 2020
• "Federal Circuit Rules Public Key Cryptography Algorithm Invalid Under 35 U.S.C. § 101," July 22, 2020
• "Packet Intelligence LLC v. NetScout Systems, Inc. (Fed. Cir. 2020)," July 20, 2020
• "Electronic Communication Technologies, LLC v. ShoppersChoice.com, LLC (Fed. Cir. 2020)," July 16, 2020
• "In re Zunshine (Fed. Cir. 2020)," July 8, 2020
• "Barbaro Technologies, LLC v. Niantic, Inc. (N.D. Cal. 2020)," May 28, 2020
• "Uniloc USA, Inc. v. LG Electronics USA, Inc. (Fed. Cir. 2020)," May 6, 2020
• "USPTO Assesses the Impact of Patent Eligibility's Changing Landscape," April 27, 2020
• "Cardionet, LLC v. Infobionic, Inc. (Fed. Cir. 2020)," April 19, 2020
• "Boehringer Ingelheim Pharmaceuticals Inc. v. Mylan Pharmaceuticals Inc. (Fed. Cir. 2020)," April 5, 2020
• "Mallinckrodt Files Certiorari Petition in iNO v. Praxair," March 19, 2020
• "Illumina, Inc. v. Ariosa Diagnostics, Inc. (Fed. Cir. 2020)," March 17, 2020
• "What is an Abstract Idea, Anyway?" March 1, 2020
• "A Step-by-Step Approach to Patent Subject Matter Eligibility Reform," February 17, 2020
• "Pebble Tide LLC v. Arlo Technologies, Inc. (D. Del. 2020)," February 13, 2020
• "CareDX, Inc. v. Natera, Inc. (D. Del. 2020)," February 12, 2020
• "The Zombie Apocalypse of Patent Eligibility Reform and a Possible Escape Route," February 4, 2020
• "iLife Technologies, Inc. v. Nintendo of America, Inc. (N.D. Tex. 2020)," January 27, 2020
• "U.S. Supreme Court on Eligibility: Nothing to See Here, Move Along," January 13, 2020

1.  Pandemic Impacts Patent Practice

On March 11, World Health Organization Director-General Tedros Adhanom declared that the COVID-19 outbreak "can be characterized as a pandemic," cautioning that the WHO has "rung the alarm bell loud and clear."  At the time of the announcement, the WHO noted that there were 118,000 cases reported globally in 114 countries.  In its latest situation report, issued on January 12, 2021, the WHO indicates that there have been 88,387,352 cases globally.  The Director-General also stated in March that the pandemic was "not just a public health crisis, it is a crisis that will touch every sector -- so every sector and every individual must be involved in the fight."

As it has for nearly every single industry, the COVID-19 pandemic has had a profound impact on patent practice.  The pandemic has changed how most of us work, where most of us work, and what many of us work on.  In the early weeks and months of the pandemic, the U.S. Patent and Trademark Office, World Intellectual Property Organization, European Patent Office, IP Australia, Intellectual Property Office of New Zealand (IPONZ), Brazilian Patent and Trademark Office (INPI), Canadian Intellectual Property Office (CIPO), Mexican Institute of Industrial Property (IMPI), National Office of Intellectual Property (ONAPI) in the Dominican Republic, Intellectual Property India, National Intellectual Property Office (NIPO) in Sri Lanka, Israel Patent Office, Intellectual Property Office of Vietnam (NOIP), and Directorate General of Intellectual Property (DGIP) in Indonesia, among numerous other patent offices, modified deadlines and procedures to accommodate applicants and their representatives.

In addition to providing some deadline relief at the beginning of the pandemic, the USPTO implemented a COVID-19 prioritized examination pilot program, in which applicants that qualify for small or micro entity status can request prioritized examination without paying the fees typically associated with such prioritized examination.  In September, the USPTO also implemented a deferred-fee provisional patent application pilot program in order to promote the expedited exchange of information about inventions designed to combat COVID–19.  And in June, USPTO Director Andrei Iancu sent a letter to the Chairmen and Ranking Members of the Senate and House Committees on the Judiciary, Senate Subcommittee on Intellectual Property, and House Subcommittee on Courts, Intellectual Property, and the Internet, to provide information regarding the Office's transition to full time telework, the status of patent and trademark filings and fee collections, and cost saving measures that the Office had taken in response to the COVID-19 pandemic-related economic downturn.  In his letter, the Director stated that the trends through mid-May were "troubling and the current economic uncertainty could lead us to revise FY 2020 and FY 2021 revenue estimates further downward."  Even though the U.S., like many other countries, is currently confronting a third wave of the COVID-19 pandemic, the USPTO, like many other patent offices, has tried to return to something akin to "normal" operations (or at least what must pass for normal during a pandemic).  The hope is that the coming spring will see sufficient distribution and adoption of vaccines such that we can all return to something that is not merely akin to normal.

For information regarding this and other related topics, please see:

• "Inherited Neanderthal Gene Encodes Genetic Risk for COVID-19," November 4, 2020
• "USPTO Announces Deferred-Fee Provisional Application Pilot Program to Encourage COVID-19 Related Inventions," September 17, 2020
• "USPTO Announces Additional Extension of Certain Patent Deadlines for Small and Micro Entities," June 29, 2020
• "USPTO Director Updates Congress Regarding Impact of COVID-19 Pandemic on USPTO Operations," June 18, 2020
• "USPTO Announces Extension for Petitioning for Restoration of Right of Priority or Benefit," June 14, 2020
• "Impact of COVID-19 Pandemic on Patent Offices – June 10 Update," June 10, 2020
• "USPTO News Briefs," June 2, 2020
• "USPTO Announces Further Extension of Certain Patent Deadlines for Small and Micro Entities," May 27, 2020
• "USPTO Announces COVID-19 Prioritized Examination Pilot Program," May 18, 2020
• "Life Sciences Court Report & COVID-19 Impact on District Court Filings," May 17, 2020
• "USPTO Announces Further Extension of Certain Patent Deadlines," April 30, 2020
• "Impact of COVID-19 Pandemic on Patent Offices and Federal Courts – April 12 UPDATE," April 12, 2020
• "USPTO Answers FAQs on Extension of Patent Deadlines under CARES Act," April 6, 2020
• "USPTO Announces Extension of Certain Patent Deadlines," March 31, 2020
• "Impact of COVID-19 Pandemic on Patent Offices and Federal Courts -- March 29 UPDATE," MARCH 29, 2020
• "Impact of COVID-19 Pandemic on Patent Offices and Federal Courts -- March 26 UPDATE," March 26, 2020
• "Impact of COVID-19 Pandemic on Patent Offices and Federal Courts -- March 19 UPDATE," March 19, 2020
• "Impact of COVID-19 Pandemic on Patent Offices and Federal Courts -- March 18 UPDATE," March 18, 2020
• "Impact of COVID-19 Pandemic on Patent Offices and Federal Courts -- March 17 UPDATE," March 17, 2020
• "Impact of COVID-19 Pandemic on Patent Offices and Federal Courts -- UPDATED," March 16, 2020
• "Impact of COVID-19 Pandemic on Patent Offices and Federal Courts," March 15, 2020