Friday, September 12, 2014

SCIPR: statistics and preview of next Term

Supreme Court Analytics on the Past Term

Professor Edward Lee, IIT Chicago-Kent College of Law
Professor David Schwartz, IIT Chicago-Kent College of Law

Small sample!  6 patent cases from Fed. Cir., 5 reversed and 1 affirmed; 2 reversals in © cases; 1 reversal/1 affirmance in Lanham Act cases.  Overall 73% reversal of all cases incl. non-IP. Fed. Cir. may be special case b/c circuit splits aren’t an issue so they may be more likely to take cases they’re going to reverse.  Alice was affirmed, but it was of a 6-6 ruling that upheld the district court.  And when Lanham Act case was affirmed, the Court rejected the test used by the circuit court.

All 6 patent cases and both Lanham Act cases were unanimous; both © cases were 6-3.  Overall, Court was 66% unanimous including non-IP.  Voting alignments: Ginsburg-Sotomayor-Kagan were 100% in majority and together; other axes were Roberts-Kennedy-Breyer and Scalia-Thomas-Alito. SG participation: SG on winning side 7 times, not in Pom Wonderful.  Except in Alice, respondent received more questions in oral argument (or the same number); losing side always got more questions.

Rise in IP cases over last few years.  Bounces around over last 50 years, but in last decade there’s a relatively large increase from 2-3 year to high water mark of 10 and 6-7 a few years in a row.  Growth especially in patent cases.

Q: why?

Schwartz: Patent law is more in the news, possibly. Justices think the Fed. Cir. is getting it wrong.  Patent bar is more active in persuading Court that patents matter—cf. Kappos’s statement about the importance of IP to the economy.

Preview of the Upcoming Term: Cert. petitions granted & to watch, Supreme Court IP practice

Hana Financial, Inc. v. Hana Bank (Whether the court or the jury determines if use of an older mark may be tacked to a newer one.)

B&B Hardware, Inc. v. Hargis Industries, Inc. (Whether the Trademark Trial and Appeal Board's finding of a likelihood of confusion precludes respondent from relitigating that issue in infringement litigation, and, if not, what deference should the trial court give to the TTAB finding.)

Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. (Whether a district court's factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires—and as the panel explicitly did in this case—or only for clear error, as Federal Rule of Civil Procedure 52(a) requires.)

Moderator: Professor Christopher Schmidt, Director, Institute on the Supreme Court of the United States (ISCOTUS), IIT Chicago-Kent College of Law

Panelists: Thomas Saunders, Counsel to POM Wonderful, Partner, WilmerHale LLP: Hana, TM tacking.  Priority of use is very important. Shouldn’t sacrifice rights from small adjustments to TM over time.  Very strict doctrine—some changes lead to lost ability to tack rights to prior mark.  Two marks should be “legal equivalents” for tacking purposes.  Question: who makes the determination, the judge or the jury?  9th Cir. says circuits take different approaches to whether confusion is an issue of law or fact; we think the same sort of issues come into play w/tacking so we say it’s an issue of fact.  Watch for: (1) Unlike IP cases without a split, this has a classic split and is harder to predict.  (2) Because of the likely confusion overlap, there’s a question of whether the back door issue of this case is how likely confusion should be treated. The way the case is being argued tends to delink those standards.  Emphasis on the particular aspects of tacking that might distinguish it.  (RT: But the Court in IP cases often goes beyond what the parties argued, as occurred in Wal-Mart, for example.)

B&B v. Hargis: TTAB deference.  Prevailing party in TTAB says you’ve had your chance to litigate so we win likely confusion if you don’t stop use.  8th Circuit says no.  One argument: if you give deference to another circuit whose confusion test differs somewhat, why wouldn’t you defer to the TTAB even if its confusion test differs somewhat as well?  So again, SCt may take up the broader issue of what the likely confusion standard is—whether all the circuits’ tests are essentially directed to the same thing even if they differ in wording.

Professor Peter Menell, University of California Berkeley School of Law: Teva v. Sandoz: very important case about case management.  Markman déjà vu.  Fed. Cir. held to the idea that it was a question of law, though SCt called it “mongrel,” and treated it as subject to de novo review. This has been very controversial in the Fed. Cir.  Dct judges claim vehemently that this usurps their power/ability to put together a record and learn the science and tech. Resulted in very high reversal rate, at least initially; come down quite a bit, but not because the Fed. Cir. is now finding the dct gets the right answer but is rather losing interest.  Fed. Cir. is reviewing cases with mixed questions w/o much of a record, because dcts fear writing anything down.  A black box.  SCt will answer whether this is a Q of law.  Do dcts have a special role in finding factual Qs?  Dcts often don’t have special insight into what PHOSITA was like at the time of prosecution.

Strongest argument for affirmance: a lot of big tech companies don’t trust district judges and want second bite at apple.  He thinks that there should be a reversal but there’s a political element. Comes down to whether SCt thinks EDTex or Fed. Cir. is the more renegade jurisdiction.  He thinks: ultimate question is mixed question, and Fed. Cir. can always review that—if dct diverges from prosecution history, for example. But subsidiary questions like what a skilled worker would know are issues of fact. Issues are often not technical in a scientific sense but in a patent drafting sense, and the Fed. Cir. and SCt haven’t confronted that.  If reversed, dramatic effects on claim construction procedure: leeway to do evidentiary hearings and build a record.

Domenic Perella, Counsel to Highmark Inc.; Partner, Hogan Lovells LLP: Layman’s perspective on Teva.  Meaning of a document = generally a question of law.  If that’s not actually what goes on for people on the ground construing a patent, that’s important to educate the Court on, and he thought the topside briefs did a good job—what happened below was not legal interpretation but gathering of facts.

Mark Perry, Counsel to CLS Bank International, Partner, Gibson Dunn LLP: SCt has shown interest in nuts and bolts of federal procedure/practice, and all these cases are about proper allocation of authority of stakeholders in IP: jury/court, agency/court, dct/appellate court. Past Term: statute of limitations, discovery, tolling—Court has a renewed interest in these issues.

Jameson Jones, Counsel to Static Control Components, Partner, Bartlit Beck LLP: Ultimately Teva may not give a lot of guidance; it could say that the facts are very narrow—could be limited to “is molecular weight calculable in a number of different ways?”  How broadly you go with inferences from facts as legal ultimately will determine importance of case.

Menell: a lot of Markman cases are about ordinary terms interpreted in the context of the claim; scientists may read differently than we do, whereas they often agree on the meaning of exotic terms.  It may be true that statutory/contract interpretations rarely involve that kind of dispute over meaning of terms, but patents do.

Constantine Trela, Jr., Counsel to Alice Corp.; Partner, Sidley Austin LLP: Meaning of a term to a practitioner at the time is a legal issue b/c it’s the ultimate issue in the case.  If so, Fed. Cir.’s legal sails may not be much trimmed.

Menell: Ultimate Q is how you take what people think and nest it w/in the patent claim and specification. That’s where you get the room for Fed. Cir. to intervene.  Battle of experts is something dcts deal with all the time.

Q: why so many IP cases?

Menell: Court engaging in gap-filling exercises.  If you look at reform proposals from 10 years ago, the AIA only dealt with ½ the issues; the others were dealt with by the SCt or the Fed. Cir.  SCt had ignored patents but has now engaged; feel a responsibility to this area of the law. The beatings will continue until people behave/until the sense that the patent system is out of control dissipates.  Patent office has really cut back in the last year; there’s still enough mischief out there to see more patent cases.  Harder to see systematic source of cases for © and TM.

Perella: surges occur in many kinds of SCt cases—criminal, etc. Then the ripples dissipate.  Similar here.

Perry: disagrees. We’re watching a transformation of the economy into information-based, tech-based and the stakes are so high that an area of the law that used to be the province of subject matter experts in small regional firms is completely different now.  Multibillion-dollar cases being litigated w/huge downstream consequences. Congress has written into law a guarantee of litigation almost impossible to settle as part of Hatch-Waxman, so now it’s part of the business model.  Cellphones: at each other hammer and tongs.  So much economic incentive to sue.

Saunders: you get lots of reversals of the Fed. Cir. but with a vague standard, which puts authority back into the hands of the Fed. Cir. which has to interpret the standard in the average case. 

SCIPR: false advertising

Lexmark Int'l v. Static Control Components (Standard for determining standing for false advertising claim under the Lanham Act.)

POM Wonderful v. Coca-Cola (Standing under the Lanham Act to challenge food or beverage label as false or misleading though regulated by the Food, Drug, and Cosmetic Act.)

Moderator: Scott Burow, Partner, Banner & Witcoff Ltd.: is the new test in Lexmark, zone of interests plus proximate causation, better?

Panelists: Jameson Jones, Counsel to Static Control Components, Partner, Bartlit Beck LLP: Yes.  Focuses back on text and history of statute more than some unmoored 5-factor test.

RT: real Q is what proximate causation will mean. Will a competitor w/20% market share be able to plead proximate cause from false advertising by another competitor w/20% market share.

Thomas Saunders, Counsel to POM Wonderful, Partner, WilmerHale LLP: Static Control had huge market share according to SCt.  Big question mark remains.

Jones: definitely open-ended.  Background principle for all federal statutes.  Interesting parallel w/RICO cases.  Cts of appeals had developed theory of RICO standing, and SCt just decided that proximate cause was the right standard. Reputational interest in subject matter = generally proximate cause.  Small market player when someone else is falsely touting themselves = maybe you have trouble.  Suppliers to Static Control = not be able to establish proximate cause.

RT: worry about not allowing producers in competitive markets to sue, since they don’t have huge market share. Cause of action shouldn’t be reserved for monopolists/near monopolists.

Q: consumer standing?

Jones: SCt was clear, no. Defensible line in context of how Lanham Act came to be. Designed to enforce treaty obligations to protect people who entered the US market.  “Those engaged in commerce.” 

Saunders: “any person” language—as outside observer: opinion doesn’t like language of prudential standing.  Zone of interest = look at statute. But then you have very broad statutory language, to which they didn’t give effect.  What supplies the context/content?

Jones: text, context, history of statute. SCt has long history of saying “any person” doesn’t mean “any person.”

RT: protecting consumers was part of the text, context, and history. And consumers  also engage in commerce.

Jones: state consumer protection acts give protection anyway. Sellers need uniform federal remedy.

Q: will judges have more discretion to throw out claims?

Jones: not more than prior tests, especially reasonable interest circuits or Conte Bros. circuits.

RT: real issue is pleading standards. Some courts accept allegations of damage, others require further allegations.

Q: who’s in better position to enforce the law, FDA/private party?

Saunders: Private party. FDA is focused on health/safety, limited enforcement resources and information.

RT: not a competition. Some things FDA is needed for. Don’t want to denigrate FDA’s capabilities.

Saunders: complementary: not a preapproval regime where FDA looks at every label.  Pom has its own research surrounding pomegranate juice and a 100% product; Coca Cola’s cheaper product deceives consumers into thinking they’re getting the premium product not apple and grape.  Different from FDA’s separate health concerns.

RT: also FDA has interest in consistency/consumers’ ability to rely on statements being the same across different foods.  Adding information into the market.

Jones: if FDA requires something, Lanham Act couldn’t require its removal.

Q: Kennedy says competitors know more about the market.

Saunders: certainly right.  It’s really less about undermining FDA than national uniformity: what if one jury says label should’ve been larger and another says something different. Coca-Cola’s argument was let FDA be the centralized figure answering the question.

RT: FDA does know stuff about the market; they generalize: small print doesn’t work generally; don’t need a study specifically about yours.  Don’t threaten that!

Saunders: Preclusion remains. Express preemption for certain state law claims.  Opinion’s discussion of uniformity: standards based approach can be applied by individual juries but can be nationally uniform if it comes from one statute, like the Lanham Act.

Q: more cases?

Jones: modest uptick. Not necessarily huge.

Saunders: litigation economics matters. Still might not make sense to sue over low-level harm. Or more as an added claim in an existing case. The cases before the Court are big deals for the core businesses of the Ps.

RT: compare Dastar and Wal-Mart: Court sent strong signals about narrowness and here breadth of statute.  Seeing similar use of Pom Wonderful and Lexmark: introductory statements about breadth of statute are picked up in other cases not really about the same things.

Jones: publicity matters; being in the SCt matters.

Q: did Lexmark weaken reliance on prudential standing?  Declaratory judgments maybe.

Jones: Designed to give guidance across fed statutes.  Court signals that it hates prudential standing as a term because it suggests judicial freedom, but it’s a similar inquiry w/different words. Shift in focus/semantics. Proximate causation still remains an issue.

RT: lower courts are clearly ignoring that semantic shift.  Substance: Starting to see sporadic use of the zone of interests/proximate cause test in TM, but not much yet. Can imagine it increasing.

Ed Lee: is the bottle misleading?

Jones: yes. Surprised at how little pomegranate juice was in it.

RT: Justice Kennedy clearly thought it was a fraud.  Conventional wisdom: if the judge thinks it’s deceptive, it is, reasonable consumer standard aside.

SCIPR: patents (Alice/Nautilus)

Alice Corp. v. CLS Bank (Patentable subject matter of software-related inventions)

Nautilus v. Biosig Instruments (Patent indefiniteness)

Moderator: Thomas Pasternak, Partner, Steptoe & Johnson LLP

Panelists: Constantine Trela, Jr., Counsel to Alice Corp.; Partner, Sidley Austin LLP: Alice: We know that reciting computer components isn’t enough. Improving the operation of the computer, data handling, etc. seems to be PSM. Big area in between; not a lot of guidance on that. 

Mark Perry, Counsel to CLS Bank International, Partner, Gibson Dunn LLP: Is there enough guidance?  There is important guidance, but how much is enough?  SCt has been incremental.  Deliberately tried not to craft a fit-every-case, answer-every-question standard.

Professor Rebecca Eisenberg, University of Michigan Law School: we need to go back to Diamond to find a clear statement of what is PSM (other than cDNA); hopefully this will eventually show up with software.  Not very illuminating.

Professor Ronald Mann, Columbia Law School: disappointing pattern: take big cases, then become scared that they’ll ruin the economy if they say something big and say as little as possible. Fed. Cir. then tries to deal with it and eventually the opinions from Fed. Cir. make no sense because each judge is trying to pick the language from  the previous SCt opinion that they think is really the test. 

Perry: problem is in part overthinking. Bugs in the forest = not patentable.  Bugs built in the lab = patentable.  Economic principles = not.  But, you can find sentences in every opinion that will support anything and throws it open to the litigators.

Trela: Fundamental problem: if abstract idea is the trigger, Court is incredibly unclear about what an abstract idea is. Economic principles everyone knows may be obvious, but does that make them abstract? Algorithms, formulas, natural laws: rationales given for unpatentability are about withdrawing things from the storehouse of human knowledge, inherent in nature/mathematical relationships. Makes sense doctrinally, but when you get to economic concepts, they may be obvious, but if I come up with a wild idea like “make energy from cigarette butts” I may have an implementation problem but I haven’t withdrawn anything from the storehouse of human knowledge.

Perry: Part of the problem is, as Prof. Eisenberg said, that they’re working through the problem by telling us what’s not PSM but not what is. Fear of foreclosing technologies they don’t understand (cf. Aereo discussion at oral argument).  Doing it with a computer = not inventive because they have computers.

John Vandenberg, Counsel to Nautilus, Inc., Partner, Klarquist Sparkman LLP: SCt sees patents as a two edged sword. Q is whether the benefit from allowing claims of this sort outweighs the risk. 

Eisenberg: inventive concept is an unfortunate term.  Leaves impression that it’s more like 103, not what the Court intended.  PTO’s guidelines have offered a bunch of alternative factors to see whether there’s enough there beyond excluded matter.  If we had a clearer understanding of what an abstract idea/natural law/natural product maybe we wouldn’t have to collapse 101 into a seat of the pants 103 analysis.

Mann: abstractness may provide a less institutionally well suited way to dispose of cases than the other bars.  Judges say “this doesn’t sound inventive” but what do they know about business software?  It’s inherently situational.  Could use more contextual knowledge.

Eisenberg: agree (on this).  More interested in that on the nature side than the abstractness side. 102 has a discipline for figuring out the state of human knowledge to guide decisions, provide source of information. By contrast there’s no guide to figuring out what nature knows—isolated DNA is naturally occurring, but cDNA isn’t, per amicus briefs.  Imagining a magic microscope, but how do we know what that reveals?  We only have real microscopes.

Perry: only a problem at the tail end of the distribution (general groaning results).

Vandenberg: software patents no longer make sense for a small business—even if you get through the PTO you might be challenged.

Eisenberg: the only cases we’ve seen have been computer implemented business methods rather than broader software, but her expectation is that broadly claimed software patents are in trouble.

Mann: some patents are very specific, and we haven’t had cases about electronic inventions. Smartphone patent—completely intangible/electronic, but actually applied—you might see the Court have the nerve to say something’s patentable.  The patent in this case seemed the same as the patent in Bilski to them. They think the case means ‘we really meant it in Bilski.’

Perry: Google, BSA, etc. filed on the Bank’s side; didn’t view the case as threat to their industry, though some of them aren’t patent-reliant companies.  (Note from someone, sorry, that Microsoft is a defendant in half the software patent cases.)

Q: turn to Nautilus.

Vandenberg: Fed. Cir. test: if claim was amenable to construction, and not insolubly ambiguous, that was enough.  That language was curious and sent a message to trial courts that they shouldn’t waste time on indefiniteness. Chance of being reversed on claim construction is high enough anyway.  Only in means plus function was Fed. Cir. rigorous.  SCt: no one defended insoluble ambiguity.  We think Nautilus means not a post hoc approach. Not can you figure out, but can a follow on innovator look at the patent the day after issue and have reasonable certainty what’s covered.

Trela: Claim construction in theory tells you what claim meant to person of ordinary skill at the time. It’s only post hoc in the sense that all litigation is post hoc. What’s wrong with looking at claim construction?

Vandenberg: our patent was out of reexamination; pretty established that if you have reexamination you get to use the history of that too.  You can’t have a crystal ball to figure out what will happen. Fed. Cir. said “it’s clear because the reexaminer accepted this argument.”  Claim construction can be very hard; fact that it can be done shouldn’t tip scales against a finding of indefiniteness. There’s always a right construction, even when there isn’t really: because the claim must be construed.

Eisenberg: in order to exercise active appellate review, Fed. Cir. and SCt want to attribute meaning to the claim language; it becomes hard to say “this is ambiguous” even when a dct assigns one interpretation and a split appellate panel gives 2 more.  That’s ambiguity; if 3 different views are possible after studying the patent closely, then, even if each one is confident, indefiniteness exists. Likes focus on claim language as central and important and something applicants can do better on.

Mann: example of legal sociology.  What’s the difference between SCt standard and Fed. Cir. standard?  Probably nothing. Just keep “insolubly ambiguous” out of it.  They’ve accomplished a change in the status quo: dcts were told that if they invalidated on indefiniteness grounds they’d be reversed; now they won’t (necessarily) be.

Perry: this, unlike Alice, is really designed to influence primary conduct of patentees. Encourages them to write better and more claims.  Eisenberg mentioned claim by claim approach; we’ll see some claims getting wiped out while others survive. This ought to produce better patents down the road.

Mann: best part of briefs were discussion of the incentive to write indefinite claims in the hope that 20 years from now it would cover something.  That had a real effect on the Court.

Vandenberg: praises Gibson & Dunn for partnering on the briefs, but as a patent lawyer he contributed, among other things, a book of advice to patent lawyers/treatises & articles about the importance of including ambiguous claims. More ambiguous = more powerful, harder to innovate around; the zone of uncertainty was deliberate, and the Fed. Cir.’s standard encouraged that kind of practice.

SCIPR: David Kappos keynote

Keynote Lecture: "Stalemate or Statesmen? What Is Needed to Move Forward Constructively with the Balancing of America's IP System"
Speaker: David Kappos, Partner, Cravath, Swaine & Moore

We’ve demonstrated ability to achieve stalemate. Not likely to change unless we step back from political fray and bring diverse but not incompatible interests together.  IP-intensive industries provide millions of jobs.  But that doesn’t mean that all is perfect in the underlying system. They said the AIA couldn’t be done, but it was—now how do we fix patent litigation?

There’s no solution to stop all aggressive litigation tactics that won’t marginalize the patent system to the point of irrelevance. One person’s abuse is another’s defense of a right. Americans have always been litigious. 

Judges can do a good job within the system: we had hot debates over things like the standard for obviousness and royalties in patent cases.  We ultimately found ourselves at an impasse, but the Court stepped in and in major decisions completely solved various problems.  KSR (obviousness); Seagate (willful infringement); eBay (injunctions); etc. Same scenario now: Court is addressing remaining challenges in litigation.  Participants in the debate naturally want more.  Some say court decisions aren’t as permanent as legislation, but permanence improves over time as judicial precedent takes shape.  But legislation is needed to address problems the courts can’t.

Topic 1: fee-shifting.  Helpful decisions have emerged since Octane Fitness.  Cal. ct. ordered a company to pay fees after it filed an unreasonable infringement suit.  Judge considered whether P’s attys should be sanctioned for filing an unreasonable suit. The better part of valor is to let the system work. Don’t act preemptively.

Topic 2: demand letters. Pending troll bill substantially addresses this issue.  One person’s aggressive demand letter is another’s defense of her property. Troll bill does what reasonably can be done.

Topic 3: discovery.  Legislative provision should be aspirational (respect separation of powers)—heighten pleading requirements where sensible but using Judicial Conference as implementation vehicle for staging, etc.  Wouldn’t be panacea but would have virtue of leaving decisionmaking authority to those best suited to react to particular circumstances in front of them. It’s true courts have had time to deal with these issues but haven’t, but it’s also true that courts are more focused on these issues than in the past. Congressional encouragement would give reason to fix it themselves. 

Topic 4: covered customer stays. Retailers, coffee shop owners etc. want to be left out of suits targeting their off the shelf tech products.  Seems logical at first that such users should be dismissed. Problem: many technologies are highly customizable and it’s difficult for a fixed statute to figure out if an infringement is inherent in an acquired IT solution, or whether the situation is caused by aftermarket user modifications, in which case the user shouldn’t be permitted to walk away. A bright line can be drawn, but customer added modifications are too complex/varied for any bright line rule.  Fortunately, courts have stepped in.  June: Nintendo and 11 retailers won a writ of mandamus from Fed. Cir. instructing dct to sever and stay claims of patent infringement against retailers while case against Nintendo proceeds.  Drew a distinction b/t manufacturer of potentially infringing game and retailers.  Demonstrates the courts generally know how to deal with customer stay petitions and law already provides for proper handling—mere retailers have succeeded in 18 of 24 motions to stay filed in the last 15 years.  A calibrated solution is in order for the limited issues with covered customer stays.

Topic 5: CLS Bank and Myriad: While fixing law, why not deal with cases where courts have stuggled with policy and tech and provide guidance in what’s plainly legislative territory? Congress has declined for over 200 years to enact limits on PSM except in most extreme cases.  SCt has heard 9 cases in last 50 years over PSM, creating a hash of decisions that can’t be reconciled.  Bilski, Prometheus, and the other 2 finally appear to be circling around the best available standard, abstractness. This isn’t objective, admittedly, and hard to charge patent examiners with it.  Currently: A coarse test that eliminates only the clearest of infractions; overreliance on §101 is dangerous to our country’s economic health. Codifying abstractness narrowly could, in one step, steer away from overreliance on §101 and reassure innovators that breaking new ground in biotech, 3D visualization, etc. is every bit as inventive as others.

Topic 6: Nautilus: Decisive action where it is needed to reenergize requirement clear disclosure of claims and specifications as part of the bargained-for exchange that is the patent system.  Codification of claim definiteness would do as much to curb abuse as any of the proposals debated this year.

Topic 7: PTO funding.  Fees should be retained. This would do more for job creation/economic growth than any other patent reform proposal currently on the table. If granted access to user fees, USPTO is in position to hire, train and retain a quality workforce granting quality patents that are defensible and not used as tools of abuse.  Make the USPTO’s own resources available to the agency, increasing speed and care.

Q: how can Chicago IP community get more involved in patent reform?

A: academics focused on data-driven research.  Study from last year, in part from Chicago-Kent, going through the so-called dramatic increase in litigation, revealed to the world that this wasn’t just trolls but was more complicated, was a breakthrough.  Raising your voice to support that.

Rebecca Eisenberg: codification of abstractness as imperfect but best we can do.  But it seems like it was the only thing the SCt could agree on because they didn’t want to adopt any new nonstatutory limits.  But if you’re going to Congress, Congress could do more than shovel computer programs into abstractness which previously was about E = MC2 and the like. Why codify something so flawed?

A: The most difficult issue that faces our patent system right now.  Big regret: shouldn’t have left §101 at the beginning of the patent statute, as if it was Contracts 101.  It should be the backstop and not the first stop.  102, 103, and 112 examination is sufficient—if you pass those, 101 should be no problem. 101 is the hardest place to try to craft clear standards.  You should almost never reach it, and PTO almost never does.  Abstractness is the best courts have come up with; if we try to move to something more precise and clear, we’ll find as we did in © that we can’t anticipate the future. Our great strength is flexibility—avoid the temptation to tie things down too quickly in patent law.  Flexibility means ambiguity; we have to come to grips with that. A very generic term like abstractness or something similar is about the best we can do; need to settle the issue and keep moving.

My one comment: it's interesting that I've heard nothing about design patent here.  The cases haven't (yet) reached the Supreme Court, but when we talk reform, design patent should probably be on the agenda too.