The U.S. Supreme Court released its order list on Jan. 13, 2020, and denied all pending petitions concerning patent eligibility. The intellectual property community was anxiously awaiting the court's decision as to whether it would revisit what sort of subject matter is eligible for patent protection.

Among the potential petitions, the Office of the Solicitor General weighed in on both HP Inc. v. Berkheimer and Hikma Pharmaceuticals v. Vanda Pharmaceuticals, and suggested that the court deny cert in both. The Solicitor General did, however, state in a filing that a Section 101 case was "amply warranted" and noted that Athena Diagnostics v. Mayo was a good vehicle for addressing Section 101.

Based on this and the U.S. Court of Appeals for the Federal Circuit's Athena decision in which several judges called for Section 101 clarification, the consensus was that if the Supreme Court were to grant a petition it would be Athena. Speaking to Reuters Legal on Jan. 6, 2020, I said that Athena was the case most likely to be granted, but it was only a coin flip whether the court would grant any petition concerning eligibility. The Supreme Court has consistently denied petitions concerning patent eligibility since Alice, regardless of whether Federal Circuit judges and patent owners are calling for clarification. (As we've discussed on this blog, not everyone believes patent eligibility needs clarification.)
Eyes will now surely turn to Congress to see whether patent reform actually has legs.

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