Third Retired CAFC Judge Laments Patent Eligibility MessSeptember 15, 2022

Last week, retired Chief Judge Randall Rader, of the Court of Appeals for the Federal Circuit, expressed concern over the ongoing problem with patent eligibility. Rader, whose 24 years on the Court ran from 1990 – 2014, stated that his former court is contributing to the confusion and flaws on the eligibility issue. Rader blames, in part, the Supreme Court and its decisions which have lead to a lack of clarity for eligibility of patentable subject matter. He also lamented that the Federal Circuit, which was established in 1982 to unify the patent law, is perpetuating the problem. Rather than protecting patent rights, the Federal Circuit is invalidating patents at a higher rate than any other court, according to Judge Rader. He specifically cited the 2014 Supreme Court decision in Alice v. CLS Bank, 573 U.S. 208, which is often cited as one of the major problems for patent eligibility, particularly with respect to abstract ideas, as being amorphous and unworkable.

Rader encouraged inventors, patent owners, and patent attorneys to become IP heroes by making their voices heard, so as to restore the U.S. patent system to its proper role. His comments were part of a webinar with US Inventor, an organization founded in 2015, whose stated mission is to “restore the ability of an inventor to stop the theft of a patented invention, regardless of how powerful the corporation intent on taking it.” US Inventors’ goal is to protect independent inventors and innovative small businesses and startups through legislation and administrative changes.

Judge Rader’s views are consistent with at least two other retired judges from the Federal Circuit. Judge Kathleen O’Malley, who served on the Court from 2010-2022, also expressed her concern that patent eligibility is a big problem since Alice. She thinks the Supreme Court’s refusal to reconsider the issue is absurd. See April 1, 2022 blog post.

Retired Chief Judge Paul Michel has also been vocal critic about the continuing difficulties with patent eligibility resulting from the Supreme Court and Federal Circuit decisions. He has testified before Congress, written numerous articles, spoken at various IP meetings, and filed an amicus brief with the Supreme Court supporting clarification of the eligibility law.

The Federal Circuit has repeatedly stated the need for clarification for eligibility standards, especially for abstract ideas. See, for example, the en banc Court’s majority and dissenting opinions in Athenna Dianostics v. Mayo Collaborative Services, LLC, 915 F.3d 743 (Fed Cir 2019).

Kirk Hartung is a member of the Mechanical Patent Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit or contact Kirk directly via email at

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