Posts Tagged: "Alice Corp. v. CLS Bank"

Business method patents have recovered under the new 2019 Revised Patent Subject Matter Eligibility Guidance. As the graph above shows, allowances per office action (APOA) dropped from 17% before the 2014 Alice decision to 4% right after the Alice decision. APOA then increased to about 11% in 2017 when a new business method director, Tariq Hafiz was appointed. Tariq made a special point of encouraging examiners to allow cases if they genuinely felt the claims met the 101 guidelines set forth by the patent office. APOA rose to 17% in 2019 after the new 2019 Guidance came out in January. It is now back at its pre-Alice level of 17%. It’s still not easy to get a business method patent. An APOA of 17% implies that, on average, an applicant will have to respond to five rejections before getting an allowance. Nonetheless, it is now at least a realistic possibility to get a business method patent in a reasonable amount of cost and time.

In the sixth installment of our 13-part patent-trends study (performed in collaboration with GreyB) providing high-level data across industries, we will examine trends in the medical-device industry. The United States has been the largest target medical-device market, at nearly 50% of the global market. These devices are highly variable in purpose, design and complexity. Thus, developing an effective patent strategy can be highly valuable yet complicated. Our study not only identified a set of applications that pertained to this industry, but also—for each application in this set—it was determined whether the application pertained to one or more of the categories shown in the topology below. If so, the application was appropriately tagged, such that it could be included in one or more category-specific data subsets for subsequent analysis.

In yesterday’s article, we introduced our patent-trends study (performed in a collaboration between Kilpatrick Townsend and GreyB Services) and provided high-level data across industries. Today’s article pertains to the Internet of Things (IoT) industry. With the prevalence of WiFi, cellular modems and devices configured for short-range connections, IoT systems are becoming all the more ubiquitous and exciting. No matter how powerful and sophisticated a single device is, its efficiency and usefulness will very often remain capped if it cannot “talk” to other devices. Only through these communications can the device gain a more comprehensive view (e.g., corresponding to where users are, what computations or controls may be helpful, what computations or actions other devices are already performing or coordinating). Thus, we can begin to start thinking about specifications (e.g., efficiency, speed, memory, accuracy) of a device and instead think about specifications of a system. This presents a large number of important use cases.

In Trading Technologies International, Inc. v. IBG LLC, Interactive Brokers LLC (2018-1063), the Federal Circuit agreed with the Patent Trial and Appeal Board (PTAB) that the contested claims of Trading Technologies International, Inc’s patents for graphical user interfaces (GUI) for electronic trading, numbers 7,533,056, 7,212,999, and 7,904,374, were eligible for covered business method (CBM) review and also patent ineligible. The claims at issue were claims 1–15 of the ’056 patent, claims 1–35 of the ’999 patent, and claims 1–36 of the ’374 patent. To be eligible for CBM review, a patent must claim “a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service, except that the term does not include patents for technological inventions.” In previous Federal Circuit cases, Trading Technologies (TT) patents had been determined not eligible for CBM review as they were technological inventions or were found patent eligible. The court rejected the argument that this weighed in favor of finding similarly in the present case. “We are not bound by non-precedential decisions at all, much less ones to different patents, different specifications, or different claims,” wrote the Court.

Among the seven amicus curiae briefs filed Monday with the U.S. Supreme Court in InvestPic, LLC, v. SAP America, Inc., Eagle Forum Education & Legal Defense Fund’s brief argues that the case demands a hearing because the Federal Circuit has added yet another extra-statutory test to the already distorted patentability jurisprudence. In a decision of May 15, 2018 authored by Judge Taranto, the Federal Circuit found the patent claims of U.S. Patent No. 6,349,291 invalid because they were directed to an abstract idea and lacked an inventive concept necessary to save the invention under 35 U.S.C. § 101. In the course of its opinion, the Federal Circuit created a “physical realm” test, which is nowhere to be found in 35 U.S. Code Section 101, having been wholly conjured by judges.