Posts Tagged: "software patent"

Examining Confusion Between the Chamberlain and Berkheimer Decisions at the Federal Circuit

If you’re reading this blog, then you likely are an avid follower of the Section 101 saga. The most recent episode in this saga, Chamberlain v. Techtronic at the Federal Circuit, is about so much more than a garage door operator being an abstract idea. It’s about the fact that we still have no clue what’s supposed to happen in the 2A and 2B steps of the judicially-created Alice/Mayo test. The Chamberlain panel applied the Alice/Mayo test completely backwards compared to what the Berkheimer panel said. First, the question of improvement was assessed in Chamberlain’s “Step One” (or 2A). Not only that, the panel then immediately went on to find that “(t)he specification admits that the act of transmitting data wirelessly is ‘well understood in the art,’ and no other changes to the generically claimed movable barrier operator are recited in the asserted claims or described in the specification.” 

Alice: Benevolent Despot or Tyrant? Analyzing Five Years of Case Law Since Alice v. CLS Bank: Part I

It’s been five years since the Supreme Court remade the law of patent eligibility in Alice Corp Pty Ltd v. CLS Bank Int’l. As we all know, in Alice the Supreme Court dictated that patent-eligible subject matter is determined based on a two-step test. The application of this test under Queen Alice’s reign has drastically altered the patent landscape. Over 1,000 patents have been invalidated by the federal courts and the U.S. Patent and Trademark Office’s (USPTO’s) Patent Trial and Appeal Board (PTAB), while over 60,000 patent applications have been abandoned before the USPTO following rejections for patent ineligible subject matter. Patents and portfolios in many fields – particularly software and biotechnology – have declined in value or simply become unsaleable at any price. Defenders of Queen Alice and her critics go back and forth endlessly, driven by differing permutations of ideology, technology, judicial philosophy and business goals. I have contributed my share to those discussions, no doubt. But today, let’s get down to data and see what has really happened under Queen Alice’s rule.

Trading Technologies Files New Request for En Banc Rehearing of ‘Ladder Tool’ Patent Decision at Federal Circuit

On August 15, Trading Technologies International, Inc. (TT) petitioned the Federal Circuit again for panel rehearing and rehearing en banc of its recent decision that found TT’s Ladder Tool invention to be subject to the USPTO’s Covered Business Method (CBM) review process and abstract under Section 101. TT argues that the PTAB did not follow the precedent of the Supreme Court or Court of Appeals for the Federal Circuit (CAFC) when reviewing its patent claims. The latest brief relates to U.S. Patent No. 7,725,382 (the ‘382 patent), while TT’s request for rehearing filed July 31 related to U.S. Patent No. 7,693,768.

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.

Chief Points from Responses to Senator Hirono’s Questions to Section 101 Panelists

Yesterday, we ran a series of excerpts from responses to Senator Thom Tillis’ (R-NC) questions for the record to panelists following the June hearings on U.S. patent eligibility law, held by the Senate Judiciary Committee’s Subcommittee on Intellectual Property. Along with Tillis and Senator Richard Blumenthal (D-CT), Senator Mazie Hirono (D-HI) also posed several questions to the participants in the 101 hearings. Hirono’s questions overall demonstrate a good faith desire to get to the heart of the problems in search of real solutions.