President Barack Obama has nominated two longtime government attorneys to the US Court of Appeals for the Federal Circuit (CAFC), the nation's top patent court. One of them, Raymond Chen, has been a lawyer at the US Patent and Trademark Office (USPTO) since 1998. The other, Todd Hughes, is more of a wildcard in the patent field. His background is doing commercial litigation at the Department of Justice, where he has been since 1994.
Chen has argued some of the key patent cases on behalf of the USPTO, including In re Bilksi, in which he more or less urged the Federal Circuit to dodge the issue of when computer and software-related inventions became too abstract to get patents.
The nomination of a longtime patent office insider would seem to be good news for patent-system supporters and bad news for reformers, but even the Patent Office's views about things like software patents seems to be changing. On Friday, the Federal Circuit held an en banc (full-court) argument about a key software patent case, CLS Bank v. Alice Corp. In that case, a PTO lawyer argued software itself shouldn't be patent eligible, and that patents merely claiming software connected to a general-purpose computer probably can't survive either. (Chen didn't argue that case himself, since his nomination had been announced the day before.)
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