Court Begins Year with Consistent 101 Decisions, But Then Adds Confusion
Since the start of the year, the CAFC has handed down four cases in rapid succession relating to patent subject matter eligibility – the precedential Finjan vs Blue Coat, Core Wireless vs LG electronics, and Berkheimer vs HP Inc. decisions and the non-precedential Move Inc. vs Real Estate Alliance decision. In each, the validity of patents relating to software inventions was challenged, in part on the grounds that the inventions covered abstract ideas (an ineligible subject matter under 35 U.S.C. § 101). In the first three cases released (Finjan, Core Wireless, and Move Inc.), the CAFC displayed refreshing consistency in their evaluation of the ‘abstractness’ of patents, offering a glimmer of hope that the court may finally be offering a clear path forward, in particular with regards to step one of the Alice/Mayo test. Unfortunately, that hope was dashed in Berkheimer, in which the CAFC reverted to a different procedure for evaluating the abstractness of patents. This inconsistency in the application of the Alice/Mayo test sows confusion in the patent field, and continues to make the drafting of ‘101 – resistant’ patents more difficult.