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Alice v. CLS Bank Software Patents 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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About this Author

Steven Lundberg, Schwegman Lundberg Law Firm, IP Attorney
Shareholder

Steven Lundberg is a registered patent attorney and a founding partner of Schwegman, Lundberg & Woessner. His practice is focused on patent protection for software, medical and telecommunications technology, and related opinion and licensing matters. Steve received his B.S.E.E. in 1978 from the University of Minnesota, and his law degree from William Mitchell College of Law (J.D., 1982). He has published and spoken widely on software and electronic patent protection, is active in the Computer and Electronics Committee of the American Intellectual...

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