IPR’s and 101 problems are irretrievably connected.

IMO, 101 reform can’t happen until there is procedural reform to resolve “well understood” and “directed to” as matters of law, in the precise mold of claim construction. A process without a result is an absurdity, and the nature of the result must be understood as the core of the subject matter of a process. “Directed To” must be understood to identify PHOSITA- to say definitively in which art or endeavor the invention is located. No reliable 103 or 112 analysis is possible without that 101 inquiry for process patents, and IPR’s can’t do that at all, and Art III is on a purely individual luck of the judicial draw basis under Alice.

If 101 reform happens, it would almost certainly be enhanced and empowered by allowing 101 decisions in IPR’s. Otherwise it’s all just pre-season play before a 101 challenge in a district court should you eventually lose with the PTAB and CAFC. Art. III buys another several years-all the way back to the CAFC on the 101, if subject matter is kept out of IPR’s.

If IPR’s do evolve to faster, cleaner, and fair dispute resolution tools v. random district courts, that’s probably a good thing for everyone.

They can’t get there until the courts or Congress cure the subject matter and obviousness/written description ills that bedevil Art. III courts just as well.

So a statutory change or 101 case at the Supreme Court (which they seem to be conspicuously avoiding by not conferencing on any 101 petitions) will be needed to really fix the problem with IPR’s , and those changes more than likely wont address the ground truth: Information inventions are the locus of almost all of the problems.

Information inventions are where the art in question may be information processing as information processing, or where the art is really applying information processing to the art or endeavor being modeled, simulated, or transacted – from stock trading to cartoon animation.

Is our PHOSITA an animator or a computer programmer? Is it an animator with a computer programmer at their disposal or is it an expert in User Interface and algorithmic programming? Is it the juror off the street?

Certain kinds of information are amenable to those inquires, but certain kinds are not. My thoughts on that question here:

link to papers.ssrn.com