"The point is
the law makes no sense any more, and when it makes no sense any
more it has to be rewritten," Rader said in an afternoon
session on patent law yesterday at the AIPLA Annual Meeting.
"Not in the House, but the Senate – the Republicans
Rader said that he recently did
something he had not done for a long time – he read a
judicial opinion five times. It was the Australian
Myriad judicial opinion.
"The Australian version of
Myriad, not the American one, got it dead right," said
Rader. "United States law is the one that is out of tune."
Rader appeared to suggest that
the audience should consider how an appeal will affect the law
before filing one. One audience member pushed him on this,
saying a client may think settlement terms are unacceptable
even if an appeal may change the law in a way it
"What I’m telling
you is if you bring Bilski to the Supreme Court you
can expect the results you are going to get," replied Rader.
"Therefore, if you are wise, you
settle it before it gets there. Has that happened before? Yes.
Dozens of times and that’s what this group can do
strategically to get a good case so that there is good law.
"How well have you done with
Bilski, Alice, Prometheus and
Myriad? How do you propose we get from the US state of
patent eligibility, which is out of step with the whole world,
back in to harmony with international standards? I just told
you – legislative correction."
Rader said that given a case
with the right characteristics, however, there is a chance for
the law to be narrowed. "If you find the right case, there is
room to narrow it," he said.
Responding to some
pessimistic audience comments about the effect the Supreme
Court is having on innovation in the technology space, Bob
Stoll, the session’s moderator, said: "I do think
software is patentable and claiming it in a manner that is
viable is still possible. But I think there are significant
problems and we need to figure out a way to make sure it
doesn’t deteriorate further and does in fact get
He noted that the fact that a
number of industries are being affected could give cause for
hope that there will be change. "I do think we have a
collective pain here where we have got all the emerging
technologies under attack," said Stoll. "It is rare we get the
folks in the software creation industry in complete alignment
with those in the biotech industry. The catalytic manufacturing
industry is also going be impacted as are surgical
He continued: "I think
you’re going to find a very strong group of
companies and interests looking to fix this. If we decide to go
in that direction, that would be very helpful for moving things
on the Hill, because I do believe that Members of Congress and
Senators listen to their constituents who come to talk to them.
Patent subject matter eligibility hasn’t been at
the forefront in Congress, but as it elevates there may be some
interest in doing something."