The Alice v. CLS Bank Scorecard, Two Years Later
It has now been a two years since the Supreme Court rendered its now infamous Alice v. CLS Bank decision. It is safe to say that the Alice decision has had a profound impact on software patent enforcement, both at the Federal Circuit and in the Federal district courts.
Here is a summary of Federal Circuit Section 101 software eligibility decisions. As you will see, very few software patents have been upheld by the Federal Circuit in the last few years.
Breakdown of Federal Circuit 101 Cases, Post-Bilski, by Inventive Subject Matter
| Inventive Concept at Point of Novelty |
Involving Software and/or Data | Count of Eligible Rulings | Count of Ineligible Rulings |
| Involves non-technological intangible rights, for example, contract and legal rights and obligations, or abstract tasks, pricing, e.g., review an insurance policy | Yes—all | 0 | 12 |
| Involves data representing non-technological real-world objects, e.g., food objects | Yes | 0 | 1 |
| Involves data processing of data representing technological real-world signals, e.g., GPS signals | Yes | 2 | 0 |
| Involves technological feature/operation of a computer display/rendering system, e.g., halftoning of grayscale images, 3-D graphics, rendering | Yes—all | 1 | 2 |
| Involves data representing the manipulation of non-technological abstract objects or concepts, e.g., virtual game objects or bingo game | Yes—all | 0 | 2 |
| Involves method of (arguably) technological data processing, transformation and transmission, e.g., scanning/inputting and data input from telephone | Yes—all | 1 | 4 |
| Involves technological arrangement Web page user interface or for serving Web pages used in a commercial Web site to achieve a business purpose | Yes—all | 1 | 2 |
Breakdown of Federal Circuit 101 Cases, Post-Bilski, by Technological Nature
| Inventive Concept at Point of Novelty |
Involving Software and/or Data | Count of Eligible Patents | Count of Ineligible Patents |
| Involves non-technological point of novelty | Yes—all | 0 | 15 |
| Involves technological point of novelty | Yes—All | 5 | 8 |
Patents in Suit Involve Non-Technological Intangible Rights
| Federal Circuit Case |
Patent(s) | Subject Matter | Eligible |
| IN RE SMITH, Appeal No. 2015-1664 (2016)
|
12/912,410 | A card game involving rules for conducting a wagering game | No |
| Versata Development Group, Inc. v. SAP America, Inc. (2015)
Ineligible |
6,553,350 | Pricing products in multi-level product and organizational groups
—Methods, computer-readable storage media, and apparatus |
No |
| Intellectual Venture I LLC v. Capital One Bank (2015) | 8,083,137
7,603,382 |
Credit facility for controlling financial transactions
—Methods Advanced Internet interface providing user display access of customized Web pages —Systems |
No |
| OIP Technologies, Inc. v. Amazon.com, Inc. (2015) | 7,970,713 | Automatic pricing in electronic commerce
—Methods |
No |
| Federal Home Loan Mortgage Corp. aka Freddie Mac v. Graff/Ross Holdings LLP (2015) | 7,908,202
7,685,053 6,192,347 |
Securitizing property into separately valued components
—Methods and systems |
No |
| Ultramercial, Inc. v. Hulu, LLC (2014) | 7,346,545 | Payment of intellectual property royalties by interposed sponsor over a telecommunications network
—Methods |
No |
| buySAFE, Inc. v. Google, Inc. (2014) | 7,644,019 | Safe transaction guaranty
—Methods and computer-readable media |
No |
| Accenture Global Servs., GmbH v. Guidewire Software, Inc. (2013) | 7,013,284 | Component-based interface to handle tasks during claim processing
—Methods and systems |
No |
| Bancorp Services LLC v. Sun Life Assurance Co. (2012) | 5,926,792
7,246,037 |
System for managing a stable value-protected investment plan
—Methods and computer-readable media |
No |
| Fort Properties Inc. v. American Master Lease LLC (2012) | 6,292,788 | Methods and investment instruments for performing tax-deferred real estate exchanges
—Methods |
No |
| Dealertrack Inc. v. Huber (2012) | 7,181,427 | Automated credit application system
—Methods |
No |
| Cybersource Corp. v. Retail Decisions Inc. Corp. (2011) | 6,029,154 | Method and system for detecting fraud in a credit card transaction over the Internet
—Computer-readable media and method |
No |
Patents in Suit Involve Data Representing Non-Technological Real-World Objects
| Federal Circuit Case |
Patents | Subject Matter | Eligibility |
| Dietgoal Innovations LLC v. Bravo Media LLC (2015) | 6,585,516 | Computerizing meal planning—Methods and systems | No |
Patents in Suit Involve Processing of Data Representing Technological Real-World Signals
| Federal Circuit Case |
Patents | Subject Matter | Eligibility |
| ELECTRIC POWER GROUP, LLC, v. ALSTOM S.A., ALSTOM GRID, INC., PSYMETRIX, LTD., ALSTOM LIMITED, (2016)
|
7,233,843
8,060,259 8,401,710 |
Deriving a composite indicator of reliability that is an indicator of power grid vulnerability from real time measurements or computations of measurements from the data grid as well as non-power grid data received from the non-grid data source | No |
| SiRF Technology Inc v. International Trade Commission (2010) | 6,417,801
6,937,187 |
Processing of GPS signals
—Methods |
Yes |
Patents in Suit Involve Technological Feature/Operation of a Computer Display/Rendering System
| Federal Circuit Case |
Patents | Subject Matter | Eligibility |
| Fuzzysharp Technologies Inc. v. Intel Corporation (2015) | 6,618,047 | Visibility calculations for 3D computer graphics
—Method |
No |
| Digitech Image Technologies, LLC v. Electronics for Imaging, Inc. (2014) | 6,128,415 | Device profiles for use in a digital image processing system
—Device profile and methods |
No |
| Research Corporation Technologies, Inc. v. Microsoft Corp. (2010) | 5,111,310
5,341,228 |
Method and apparatus for halftone rendering of grayscale image using a blue noise mask
—Methods |
Yes |
Patents in Suit Involve Data Representing the Manipulation of Non-Technological Abstract Objects or Concepts
| Federal Circuit Case |
Patents | Subject Matter | Eligibility |
| Gametek LLC v. Zynga Inc. (2015) | 7,076,445 | Obtaining advantages and transacting the same in a computer gaming environment
—Methods |
No |
| Planet Bingo, LLC v. VKGS LLC (2014) | 6,398,646
6,656,045 |
Storing preselected numbers for use in games of bingo
—Methods and systems |
No |
Exhibit 6-8
Patents in Suit Involve Method of (Arguably) Technological Data Processing, Transformation and Transmission
| Federal Circuit Case |
Patents | Subject Matter | Eligibility |
| ENFISH, LLC v. MICROSOFT CORP., 2016). | 6,151,604
6,163,775 |
A self-referential table/data structure designed to improve the way a computer stores and retrieves data in memory | Yes |
| BASCOM GLOBAL INTERNET SERVICES, INC. v. AT&T MOBILITY LLC, (2016). | 5,987,606 | A content filering system deployed at an ISP server and making it more dynamic and efficient | Yes |
| TLI COMMUNICATIONS LLC v. AV AUTOMOTIVE, L.L.C., (Fed. Cir. May 17, 2016). | 6,038,295 | Classifying and storing digital images (of any type) in an organized manner | No |
| Content Extraction v. Wells Fargo Bank (2014) | 5,768,416
5,258,855 5,369,508 5,625,465 |
Scanning and information processing methodology
—Methods and machines (interface/system) |
No |
| Cyberfone v. CNN (2014) | 8,019,060 | Telephone/transaction entry device and system for entering transaction data into database
—Methods and systems |
No |
Patents in Suit Involve Technological Arrangement of Web Page UI or for
Serving Web Pages
| Federal Circuit Case |
Patents | Subject Matter | Eligibility |
| Intellectual Ventures I LLC v. Capital One Bank (2015) | 8,083,137
7,603,382 |
Credit facility for controlling financial transactions
—Methods Advanced Internet interface providing user display access of customized Web pages —Systems |
No |
| Internet Patents Corp. v. Active Network, Inc. (2015) | 7,707,505 | Dynamic tabs for a graphical user interface
—Methods, systems, computer-readable media |
No |
| DDR Holdings, LLC v. Hotels.com (2014) | 7,818,399 | Expanding commercial opportunities for Internet Web sites | Yes |
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