Wi-Fi One v Broadcom

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WI-FI ONE, LLC, Appellant, v. BROADCOM CORPORATION, Appellee

Wi-Fi asserted before the Board and on appeal that Broadcom was barred from petitioning for inter parties review because it was in privity with a time-barred district court litigant under 35 U.S.C. §315(b). The Court disagreed, and reasserted its holding in Achates that §314(d) prohibits this court from reviewing the Board’s determination to initiate IPR proceedings, and that preclusion of judicial review is not limited to substantive patentability determinations. An opinion concurring in the result observes that in an IPR a legal distinction that exists between an “institution” decision and a final decision, and that a final decision concerning the time bar set forth by 35 U.S.C. § 315(b) should be subject to review.

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businessman protecting graphic of human brain in his hands

Multilayer Stretch Cling Film v Berry Plastics

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Multilayer Stretch Cling Film Holdings, Inc., v. Berry Plastics Corporation

No. 2015-1420, -1477 Fed. Cir. Aug. 4, 2016 Opinion by Circuit Judge Dyk with Circuit Judge Plager. Opinion dissenting in part by Circuit Judge Taranto.

Multilayer appealed the lower court’s summary judgment of non-infringement of US Patent No. 6,265,055 and invalidation of Claim 10 of the ‘055 patent under 35 USC §112(d). Berry appealed the denial of its request for sanctions against Multilayer under Rule 11 of the Federal Rules of Civil Procedure. The Federal Circuit reversed the lower court’s claim construction of the Markush group appearing in Claims 1 and 28 of the ‘055 patent. (more…)

Unwired Planet v Apple

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Unwired Planet, LLC v. Apple Inc.

No. 2015-1725 Fed. Cir. July 22 2016 Opinion by Circuit Judge Moore with Circuit Judges Bryson and Reyna.

Unwired Planet appealed the lower court’s summary judgment of non-infringement of U.S. Patent Nos.:

6,532,446 Server based speech recognition user interface for wireless devices

6,647,260 Method and system facilitating web based provisioning of two-way mobile communications devices

6,317,831 Method and apparatus for establishing a secure connection over a one-way data path

and

6,321,092 Multiple input data management for wireless location-based applications

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Patent your Software

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Patent your Software ?

Originally posted at Charleston Digital Corridor

Case study: Enfish, LLC v. Microsoft Corporation
You may be able to patent your software after all

Mark Twain famously said “The reports of my death have been greatly exaggerated.” The same may be true of patents on software.

After the Supreme Court’s holding in Alice Corp. v. CLS Bank International in 2014, patents for software appeared to be in doubt. The issue at that time was whether claims directed to a computer-implemented, electronic escrow service for facilitating financial transactions were patent eligible. The patent claims were held to be invalid because the claims were drawn to an “abstract idea,” even though the processes were performed by a computer.

Since then, most patent claims directed to computer implemented processes have been held to be directed to an “abstract idea” by the Courts, even though the Supreme Court has not established a definitive rule for determining what constitutes an “abstract idea.” As a result, most computer implemented methods, such as those methods implemented by software, have been found to not be eligible for a patent.

However, on May 12, 2016, the Court Appeals for the Federal Circuit (which hears all appeals from trial courts involving US Patents) stated in Enfish, LLC v. Microsoft Corporation, that there is “no reason to conclude that all claims directed to improvement in computer-related technology, including those directed to software, are abstract” are necessarily ineligible for patent protection.

Further, the Federal Circuit looked at “whether the focus of the claims is on a specific asserted improvement in computer capabilities…or, instead, on a process that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool.” The Court found that the Enfish claims were not directed to an abstract idea because “the plain focus of the claims is on an improvement to computer functionality itself, not on economic or other tasks for which a computer is used in its ordinary capacity.”

In other words – and for now at least – if the claimed invention causes the computer to function in an improved manner, patentable subject matter may be present. You may be able to patent software after all. However, the Supreme Court may have the last word on this case. We will be watching it closely.

B.C. Killough is a registered patent attorney based in Charleston, SC. On behalf of his clients, Bill has obtained more than 300 United States patents, participated in prosecuting more than 100 foreign patent applications and he has filed more than 1000 trademark applications with the US Patent and Trademark Offices. The criteria for obtaining a patent goes beyond patent subject matter eligibility, and the comments herein should not be relied upon as legal advice.

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