Posts Tagged: "software patents"

Patent Eligibility Under Section 101: Has the United States ‘TRIPPED’ Up?

The present U.S. eligibility jurisprudence, and especially that of the Federal Circuit, not only creates serious issues of U.S. domestic law but also arguably places the U.S. in violation of its obligations under the TRIPS treaty with respect to inventions at both ends of the subject-matter spectrum. Acts of Congress, including Section 101, where fairly possible, ought to be construed so as not to conflict with international law or with an international agreement with the United States, particularly where, as with TRIPS, the United States was the moving spirit behind the treaty. See Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). Although there may have been room for doubt prior to the en banc refusal in Athena and the Australian decision in Ariosa, it is submitted following Judge Moore’s dissent that the situation has become a virtual certainty.

Trading Technologies Asks Supreme Court to Restore Congress’ Purpose in Creating the Patent Act

Trading Technologies International, Inc. (TT) has filed a petition for certiorari with the U.S. Supreme Court asking it to clarify U.S. patent eligibility law, including whether the Court should overrule its “abstract idea” precedents. The petition relates to the Federal Circuit’s April 2019 decision siding with the Patent Trial and Appeal Board (PTAB) that certain claims of TT’s patents for graphical user interfaces (GUI) for electronic trading were eligible for covered business method (CBM) review and also patent ineligible. IPWatchdog has written much about this and related Trading Technologies cases. Though earlier Federal Circuit panels had found other TT patents not eligible for CBM, as the court found they were directed to technological inventions, Judge Moore said in her April opinion that the patents at issue here—numbers 7,533,056, 7,212,999, and 7,904,374—”relate to the practice of a financial product, not a technological invention,” and that “the specification makes clear that the invention simply displays information that allows a trader to process information more quickly.”

Note to the Federal Circuit: Spewing Illogical Nonsense Does Not Make It True

The Federal Circuit recently reversed the District of Minnesota’s denial of summary judgment in Solutran, Inc. v. Elavon, Inc., Nos. 2019 U.S. App. LEXIS 22516 (Fed. Cir. July 30, 2019) (Before Chen, Hughes, and Stoll, Circuit Judges) (Opinion for the Court, Chen, Circuit Judge), holding that the claims at issue, which related to processing paper checks, were invalid under 35 U.S.C. § 101. The physicality of the limitations of the claims did not save the claims. See Physicality of Processing Paper Checks Does Not Save Solutran’s Claims. “[W]e have previously explained that merely reciting an abstract idea by itself in a claim—even if the idea is novel and non-obvious—is not enough to save it from ineligibility,” Judge Raymond Chen of the Federal Circuit explained for the majority. The Federal Circuit can state that proposition until every single judge is blue in the face and there will be one exhausting, inescapable truth—it is wrong! Indeed, this logical impossibility is written into so many Federal Circuit decisions one must wonder how it is possible any of the judges who believe this nonsense were ever able to achieve an acceptable score on the LSAT in order to gain admission to law school in the first place.

As Stakeholders Await New 101 Bill, Responses to Tillis Underscore Need for Movement

Last month, we reported on the responses submitted to Senator Richard Blumenthal (D-CT) by panelists who participated in the June hearings on the state of U.S. patent eligibility, held by the Senate Judiciary Committee’s Subcommittee on Intellectual Property. Along with Senators Thom Tillis (R-NC) and Mazie Hirono (D-HI), Senator Blumenthal entered a series of questions for the record to be answered by certain participants. While movement on the bill appears to be stalled for the time being, with reports that Tillis and Senator Chris Coons (D-DE) have reinstituted the stakeholder roundtables that led up to the draft bill and hearings in the first place, it’s worth reviewing some of the responses to Tillis’ questions as the IP community waits for the next move. From David O. Taylor’s statistic that 62% of investors he surveyed said they were less likely to invest in companies where patent protection is not available, to Bob Armitage’s characterization of the draft bill’s revision to Section 112(f) as “perfect,” to the Cleveland Clinic’s statement that they are currently less likely to make the necessary investments to bring new advances in diagnostics to market, these responses are a reminder of what’s at stake.

Examining the Unforeseen Effects of the USPTO’s New Section 112 Guidelines

When the USPTO issued its 2019 Revised Patent Subject Matter Eligibility Guidance in January of this year, it seemed as if the patentability tides had finally shifted in favor of software applicants. Far less attention and fanfare, however, was afforded to the concurrently issued and unassuming Section 112 Guidelines on examination practice for computer-related and software claims. In particular, potential pitfalls awaiting software applicants may lie unforeseen in the requirement that “[f]or a computer-implemented 112(f) claim, the specification must disclose an algorithm for performing the claimed computer function, or else the claim is indefinite.”