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On Wednesday, October 17th, U.S. District Judge Indira Talwani of the District of Massachusetts signed an order dismissing a patent infringement suit brought by Malvern, PA-based wireless medical technology company CardioNet against Lowell, MA-based patient monitoring tech developer InfoBionic. Judge Talwani dismissed the suit after CardioNet’s asserted cardiac monitoring patent, which covers systems and techniques for monitoring cardiac activity, was found to be directed to patent-ineligible subject matter under 35 U.S.C. § 101.
CardioNet first filed suit against InfoBionic in this case last March, asserting U.S. Patent No. 7941207, titled Cardiac Monitoring and issued in May 2011. The patent covered a device including a beat detector to identify a beat-to-beat timing of cardiac activity, a ventricular beat detector to identify ventricular beats in the cardiac activity, variability determination logic to determine a variability in the beat-to-beat timing of a collection of beats, relevance determination logic to identify a relevance of the variability in the beat-to-beat timing to atrial fibrillation and atrial flutter, and an event generator to generate an event when the variability in the beat-to-beat timing is relevant to atrial fibrillation and/or atrial flutter. The resulting invention provides an improved monitoring system for ambulatory patients who are away from controlled environments such as hospital beds or treatment facilities.
In its complaint for patent infringement, CardioNet alleged that InfoBionic’s MoMe Kardia System, which uses a Kardia Device to record and transmit a patient’s electrocardiograph signal to a MoMe Software System that detects arrhythmias and enables human review of arrhythmia data, infringes upon multiple claims of the ‘207 patent. CardioNet’s complaint also identified a member of InfoBionic’s management team who was aware of the ‘207 patent due to involvement with a previous patent infringement case between CardioNet and Mednet HealthCare Technologies. InfoBionic also likely had knowledge of the patent due to the knowledge of InfoBionic executives who were formerly executives or employees of CardioNet, the suit alleged.
Last June, InfoBionic filed a motion to dismiss in the case, which alleged that the ‘207 patent was directed to patent-ineligible subject matter under Section 101. This March, CardioNet filed a motion for leave to file a supplemental brief in support of the eligibility of the ‘207 patent arguing that the Federal Circuit’s decisions in Aatrix Software v. Green Shades Software and Berkheimer v. HP changed Section 101 precedent impacting several aspects of the district court’s patent eligibility analysis. However, Judge Talwani denied CardioNet’s motion a few days after it was filed.
The day before CardioNet’s lawsuit was officially dismissed in a largely ceremonial one-page order, Judge Talwani issued a memorandum and order granting InfoBionic’s motion to dismiss after the court found that the ‘207 patent was directed to a patent-ineligible abstract idea when applying the two-step framework laid out by the U.S. Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank International. In the first step of the Alice framework, Judge Talwani found that claims of the ‘207 patent were directed to the abstract idea that atrial fibrillation (AF) can be distinguished by focusing on the variability of an irregular heartbeat, an argument advanced by InfoBionic. CardioNet had countered that the ‘207 patent represents an improvement to the function of cardiac monitoring devices through the use of specifically programmed rules, or “determination logic,” coupled with beat detecting technology and an event generator. Judge Talwani found that CardioNet’s argument were more appropriate for step two of the Alice patent-eligibility test. “The idea of using a machine to monitor and analyze heart beat variability and interfering beats so as to alert the user of potential AF events may well improve the field of cardiac telemetry, but Plaintiffs do not identify improvements to any particular computerized technology,” Judge Talwani wrote.
At step two of Alice, the court again sided with InfoBionic, which had argued that the ‘207 patent recites collecting cardiac data, determining its relevance and identifying a cardiac event without the identification of any technical solutions or detailed software for performing the claimed functions. The court found that nothing in the ‘207 patent’s claims imposes a meaningful limit on the abstract idea of detecting AF by looking at heartbeat variability and that the “determination logic” cited by plaintiffs wasn’t a limitation as it was undefined and unspecified. As to CardioNet’s argument that the Berkheimer decision requires factual inquiry under step two of Alice, Judge Talwani found that there were no disputes of fact because the court accepted the plaintiffs’ non-conclusory factual assertions found in the complaint as true.
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Join the Discussion
25 comments so far.
b
October 27, 2018 04:14 pm@ Pro Say “[A] claim drawn to subject matter otherwise statutory does
not become nonstatutory simply because it uses a mathematical
formula, computer program, or digital computer.”
I literally had to remind the CAFC of this very thing two months ago – twice – once in an amicus brief for Investpic on petition for rehearing. The CAFC denied rehearing.
Pro Say
October 27, 2018 01:44 pmThe folks that believe computers and the Internet cannot impart eligibility must then accept the fact that they also cannot take it away.
New technologies have not – and indeed cannot — convert the real, tangible, and concrete into the abstract … the eligible into the ineligible … the statutory into the nonstatutory.
As the Supreme Court says, it’s not possible:
“[A] claim drawn to subject matter otherwise statutory does
not become nonstatutory simply because it uses a mathematical
formula, computer program, or digital computer.”
(Diamond v. Diehr, 450 U.S. 175 (1981))
Just sayin’.
B
October 26, 2018 10:39 pm“Dude, I have no idea who judge Taranto is and neither I give a f%^&”
Okay, but perhaps you should.
angry dude
October 26, 2018 08:58 pmB @19
“Trade secrets only . . . .”
That’s exactly Judge Taranto’s idiotic position”
Dude, I have no idea who judge Taranto is and neither I give a f%^&
But keeping valuable know-how of inner workings of devices (especially the ones containing computer processor executing some code .. which is like pretty much ALL of smart devices nowadays) as trade secrets is the ONLY choice in the current environment
They wanted this ? They got it !
Back to middle ages and and to hell with advancing the progress
For all I know judge taranto must wear inquisition mantle
next thing they start burning witches a.k.a inventors
To hell with this sh1t
Ternary
October 26, 2018 05:00 pmThere is no “abstract idea” in this case. Apart from what an “abstract idea” actually is, “cardiac activity” is not an “abstract idea” and AF is not an “abstract idea.”
Mayo relates to “natural law.” The Judge in this case focuses not on “natural law” but on “abstract idea” drawn to this concept by Defendant. Monitoring “cardiac activity” by a machine (no matter if it is a computer) is not an abstract idea. It is not even a natural law, especially not when an “event generator” is included.
Where is the “abstract idea?” Calling a physical phenomenon or a natural law and abstract idea, is not a normative legal reality (yet) even in this weird anti-science environment. But we are getting there, it seems.
B
October 26, 2018 03:13 pmQ Angry dude, “If a machine performing useful function in a new and unobvious way can be called an ‘abstract idea’ by an idiot judge then we have reached the end of the road.”
Angry dude, meet Judge Taranto.
“Trade secrets only . . . .”
That’s exactly Judge Taranto’s idiotic position.
angry dude
October 26, 2018 03:09 pmThe priority date on that patent goes back to 2004 – two years before the sh1t show started (EBay etc etc etc…….)
I think those patent holders/assignees are now banging their heads against the wall in utter frustration and disbelief…
And so do I …
Anon
October 26, 2018 03:07 pmThe scoreboard is broken.
Referencing the score of a broken scoreboard without having the courtesy of also noting that the scoreboard is broken is rather poor taste.
We as attorneys (under most all State bar oaths) have an ethical duty to NOT place the Supreme Court above the Constitution — which quite arguably means that we have an ethical duty to note the state of the scoreboard (as opposed to merely the score).
angry dude
October 26, 2018 02:49 pmIf a machine performing useful function in a new and unobvious way can be called an “abstract idea” by an idiot judge then we have reached the end of the road…
Who the hell will want to publicly disclose any device internals like programming logic, core algorithms in a patent application after that ?
Trade secrets only – compile it, encrypt the binary, make it an ASIC
B
October 26, 2018 01:43 pm@ Ternary “No, absolutely not. Measuring/monitoring a detectable physical phenomenon with an instrument is not an abstract idea. Never was, never will be.”
I respectfully draw your attention to Mayo v. Prometheus, where the issue was measuring the metabolism of a specific substance. Look, I’m merely recognizing what the law currently is – I’m not saying I agree with it.
“The whole idea behind Alice is that a computer cannot turn an abstract idea (like a fundamental economic practice) into a patent-eligible invention. In a logic defying transformation, Alice is now used here by Judge T. to modify a non-abstract idea of a physical measurement into an abstract idea by using a computer.”
Actually, I think that you’ll see, upon a closer reading of the opinion, that Judge Taranto’s Electric Power Group monstrosity is the primary source of legal authority for the decision. Judge Tatanto’s position, clarified in Investpic, is that no process that does naught more than receive data, process data and display data is patent eligible under 101. This position doesn’t square with the actual language of 101 and is counter to Bilski, but I’m not exactly known as a person with a history praising the 101 lunatic decisions of Judge Taranto.
Look, just to be clear for the N-th time. I think the Alice/Mayo test sucks, and the CAFC took an inept test to make it 1000 worse mostly because of Taranto and Reyna. With all this in mind, my only opinion is that, upon appeal, the patent holder should take the Berkheimer approach and vigorously argue the dependent claims.
Seriously, we’re on the same page. I’m just telling you consider the normative legal realities as to embrace the positive.
Ternary
October 26, 2018 01:04 pm“Agreed, but measuring cardiac activity for irregularities is arguably an abstract idea.” No, absolutely not. Measuring/monitoring a detectable physical phenomenon with an instrument is not an abstract idea. Never was, never will be. All of scientific knowledge and progress depends on the fact that we can do physical measurements and lifted us from stupid superstitious abstract ideas and prejudices.
The whole idea behind Alice is that a computer cannot turn an abstract idea (like a fundamental economic practice) into a patent-eligible invention. In a logic defying transformation, Alice is now used here by Judge T. to modify a non-abstract idea of a physical measurement into an abstract idea by using a computer.
Cardiac activity is not an abstract idea. Measuring cardiac activity is not an abstract idea. However, using a computer in measuring/monitoring/controlling cardiac activity is an abstract idea according to Judge Talwani.
Think about it: it is the use of a computer that turns a non-abstract idea into an abstract idea according to the Court. No matter what legal precedent exists: this is utter superstitious and unscientific nonsense. It does not even comply with the Alice decision. The decision is a scientific stupidity.
After coming to a conclusion that the use of a computer transformed a physical phenomenon into an abstract idea, any somewhat rational drafter would sit back and think: no, that is not possible, I must have made a mistake in my reasoning somewhere. A critical attitude usually contributed to scientists, engineers and mathematicians, but clearly not to certain members of the legal community.
BP
October 26, 2018 12:43 pm11 @Ternary “Which begs the question where the transition from empirical to abstract takes place? Where is the witchcraft that transformed the physical phenomenon of cardiac activity to the forbidden potion of abstract idea. Oh, I see, it is the computer again that screws everything up. The Computer, the Boogey Man in Modern Invention, curse of Luddites and great Helper of Infringers. If a computer is used, just shout “abstract idea” and you have a considerable chance that it sticks. See this case.”
EXACTLY! When did chemical film processing become abstract, human ingenuity used circuitry to make it abstract. Processing image data to get a better quality image is abstract whereas changing a chemical formulation to get a better quality image is not abstract. The Luddites are taking over. It’s pure insanity. Time can never change something from non-abstract to abstract! As the USPTO says, a sensor is no longer a device. Somewhere along the line – Happy Birthday Sensor – you are now abstract.
B
October 26, 2018 12:34 pm@ Ternary ‘It seems B also bought into the idea that monitoring “cardiac activity” is an abstract idea “because it is so well known.” Which begs the question where the transition from empirical to abstract takes place?’
Now THIS is the hundred billion dollar question we’d all like answered. As it is now 101 is treated like an evidence-free 103 rejection where certain limitations can be ignored because they add no “inventive concept” noting that “inventive concept” is anything a judge wants it to be.
BTW, because determining whether something is an “abstract idea” is still considered a pure issue of law to many in the CAFC, the practical answer to your (well-thought out) transition question is this: There is no transition. Abstract springs from the minds of judges into legal reality with no empirical anything ever needed. Until the CAFC holds that determining whether something is a “fundamental building block” of human activity requires evidence, you’re asking the wrong question.
This is from a recent petition for rehearing at the CAFC: “However, to just assume, without evidence, that something is ‘a fundamental economic practice long prevalent in our system of commerce’ cannot be maintained. . . . If the Federal Circuit believes differently, Appellants respectfully submit that this court must explain how it divines that a particular economic practice is “fundamental” and “long prevalent in our system of commerce” without evidence.”
My point is that the problem is worse than you think.
B
October 26, 2018 12:11 pm@ Ternary “Cardiac activity is a natural phenomenon, not an abstract idea.”
Agreed, but measuring cardiac activity for irregularities is arguably an abstract idea.
“Oh, I see, it is the computer again that screws everything up. The Computer, the Boogey Man in Modern Invention, curse of Luddites and great Helper of Infringers.”
The SCOTUS said that the computer makes no difference. Unfortunately, the CAFC did make the computer the boogieman. It’s beyond idiotic that 18 judges each with 4 of the best and brightest law clerks can’t be bothered to read statutes or case law.
Ternary
October 25, 2018 10:25 pmThese are the questions the court has to answer:
1) If the claims at issue are directed to laws of nature, natural phenomena, or abstract ideas,
and
2) To determine whether computerized technology is directed to an abstract idea, the court “asks whether the focus of the claims is on the specific asserted improvement in computer capabilities . . . or, instead, on a process that qualifies as an ‘abstract idea’ for which computers are merely invoked as a tool.”
Cardiac activity is a natural phenomenon, not an abstract idea. Heart arrhythmias, atrial fibrillation and atrial flutter (collectively, “AF”), both of which are associated with stroke, congestive heart failure, and cardiomyopathy, are absolutely not “abstract idea” as many surviving sufferers of AF can testify to.
Like a broken record Judge T. pens down:
-the abstract idea of identifying AF
-the abstract idea of measuring the variability of heartbeats.
-the abstract idea of monitoring and analyzing ventricular beats to identify AF events.
-abstract idea that AF can be distinguished by focusing on the variability of the irregular heartbeat
If you drop in the above the term “abstract idea” you are left with:
a) identifying AF ; b) measuring the variability of heartbeats; c) monitoring and analyzing ventricular beats to identify AF events; and d) AF can be distinguished by focusing on the variability of the irregular heartbeat. Just saying “abstract idea” by a Judge, doesn’t make it so. These are all measurable physical effects.
The opinion is a complete, uncritical and shameful surrender to the concept of “abstract idea” as presented by the Defendant.
It seems B also bought into the idea that monitoring “cardiac activity” is an abstract idea “because it is so well known.” Which begs the question where the transition from empirical to abstract takes place? Where is the witchcraft that transformed the physical phenomenon of cardiac activity to the forbidden potion of abstract idea. Oh, I see, it is the computer again that screws everything up. The Computer, the Boogey Man in Modern Invention, curse of Luddites and great Helper of Infringers. If a computer is used, just shout “abstract idea” and you have a considerable chance that it sticks. See this case.
B
October 25, 2018 12:20 pm@ Ternary “Common technical sense tells us that such a machine is a technical device that is directed to a physical problem (of detecting a physical phenomenon). The fact that we were able to feel a pulse or listen to a heart-beat does not make the claimed invention in any way abstract or directed to an abstract idea. The reason for this is very simple: cardiac activity is not an abstract idea.”
The SCOTUS conflated 101 and 103. Claim 1 would likely die because of its breadth. Claim 1 APPEARS to do nothing more than what doctors have done for a long time: monitor a heartbeat and check for irregularities. Thus, the claim is abstract under SCOTUS precedent.
This puts claim 1 on a different analysis track than something like McRO. It arguably reads on an idea in of itself.
Gene Quinn
October 25, 2018 11:14 amJudith-
On a motion to dismiss the facts in the complaint are taken as true. The question is whether the case can be dismissed even if everything the plaintiff claims to be is true. You have it backwards.
Judith
October 24, 2018 10:11 pm“Judge Talwani found that there were no disputes of fact because the court accepted the plaintiffs’ non-conclusory factual assertions found in the complaint as true.”
I thought on a motion to dismiss by the plaintiff it would be the defendant’s assertions of fact that would be assumed to be true. Am I missing something?
BP
October 24, 2018 03:31 pm4 @B “To the Dist. Ct. Judge’s credit, [[he]]she did address preemption” and “[[he]]she does a far better job” 😉
6 @Ternary I see some examiners not knowing the difference between physical phenomena and abstract ideas. They are so focused on finding abstract ideas by the TQASs that any time they see something they don’t understand, it’s an abstract idea. Example: increasing temperature will burn your roast (physical phenomenon) whereas the empirical Arrhenius equation (math) will tell you approximately when your roast will be burnt. Perhaps burning your roast is a law of nature (same applies for turkeys).
Ternary
October 24, 2018 01:33 pmThe Opinion reads like a piece from the Theater of the Absurd. It shows that if one starts out from a wrong premise, almost anything can be argued. Or as B explains: the patent is a witch.
We can debate if a “debt” or a “risk” or a “sale” expressed in a computer program are directed to an abstract idea. There are no physical states that determine a “debt.” A debt in that sense is an abstract idea, depending on an agreement between humans. There are physical effects of a “debt” that can be physically measured. But the concept itself has no direct physical meaning.
“Cardiac activity” as claimed is a known and proven physical phenomenon. In fact, anyone who reads this has it. People have forever listened, felt and detected heart beats by personal observation. We also know that direct human measurements (pulse, stethoscope) are often inaccurate and cannot be transmitted to devices and do not lead to action in a machine. Something technical has to happen to create a “beat detector to identify a beat-to-beat timing of cardiac activity;” as in claim 1.
Common technical sense tells us that such a machine is a technical device that is directed to a physical problem (of detecting a physical phenomenon). The fact that we were able to feel a pulse or listen to a heart-beat does not make the claimed invention in any way abstract or directed to an abstract idea. The reason for this is very simple: cardiac activity is not an abstract idea.
Anyone who starts out with the knowledge of cardiac activity being a physical phenomenon and proceeds with a reasoning that concludes that a device that processes measurements of cardiac activity is directed to an abstract idea, must realize that something is not right.
The fact that we all had a heart beat since the beginning of existence (conventional, routine, etc) does not make it abstract. I imagine the Judge bursting out in hysterical laughter after penning this down. Let them chew on this!
BP
October 24, 2018 12:23 pmMaybe sloppy work by a sloppy judge? In digging through docs on PACER, I believe I saw errors in another one of the judge’s 101 invalidity orders in referencing claims/patents, mixing them up (there are/were two related cases before this judge). Mayo/Alice inquiry is being used by some judges to streamline federal district court dockets, regardless of Aatrix/Berkheimer and the standards for summary judgement. Technology, science, innovation, who need them!
B
October 24, 2018 11:47 am@ Gene “It is impossible to know what will happen once this case reaches the Federal Circuit.”
The patent has been accused of being a witch Accordingly, the clergy within the CAFC will test it for moles and birthmarks, then see if it weighs as much as a duck. The CAFC will then burn it at the stake in the very pleasant front courtyard regardless as the CAFC’s tests are meaningless. The patent is doomed. The only real question I cannot answer is whether the CAFC will affirm by Rule 36, or publish an opinion citing undecipherable patent scripture from the Book of Mayo, chapter 1, verse 101.
To the Dist. Ct. Judge’s credit, he did address preemption stating: “[T]he asserted claims of the ’207 patent are broadly described, with no meaningful limitation, so as to preempt other technological systems directed to the abstract idea of monitoring and analyzing ventricular beats to identify AF events.”
To be honest, after reading the Dist. Ct. Judge’s opinion, he does a far better job than 90% of the nonsense coming out of the CAFC.
All that said, claim 1 is far too broadly claimed. It reads on monitoring heart activity for atrial fibrillation and atrial flutter using a computer.
However, I believe that various dependent claims can and should survive 101. The Plaintiff should take the Berkheimer strategy, and focus of the dependent claims at the CAFC while citing a lack of evidence that the claim limitations as an ordered combination are well-understood, routine and conventional.
Curious
October 23, 2018 10:21 amThis is why I mentioned in another post that all the structural changes at the USPTO/PTAB doesn’t mean a hill of beans if (all) the Federal Courts keep booting inventions under 35 USC 101.
Gene Quinn
October 23, 2018 10:08 amAnon @1-
I couldn’t agree any more.
It is impossible to know what will happen once this case reaches the Federal Circuit. Sadly, the arbitrary and capricious handling of cases at the CAFC is becoming legendary. Under principles of U.S. legal jurisprudence it is simply inappropriate to refuse briefing when there is a significant change in the law, as there was with Aatrix and Berkheimer.
If the patentees contentions were accepted as true the ONLY possible outcome would be to deny the defense motion.
Anon
October 23, 2018 08:36 amIf the plaintiff’s facts are accepted as true (as the Judge states), then all that remains is clear legal error. Saying that one “accepts as true,” only to apply the law as if those facts are false merely means that the law was misapplied.