Cyberspace-Related Patent Developments

• Published in: The Business Lawyer Vol. 73; no. 1; pp. 259 - 266
• Main Author: Mermelstein, Lois D.
• Format: Journal Article Trade Publication Article
• Language: English
• Published: Chicago Business Law Section of the American Bar Association 22.12.2017; American Bar Association
• Subjects: Automation; Commercial law; Computer networks; Copyright; Federal court decisions; Internet; Patent law; Sensors; Software; State court decisions; Surveys; Survey—Cyberspace Law; Trials; United States > US
• ISSN: 0007-6899; 2164-1838

"32 Thus, although filtering content was an abstract idea33 and the claims recited generic computer, network, and Internet components that were not inventive on their own, the non-conventional and non-generic arrangement of those components did add up to an inventive concept.34 Thus, this was not simply a recitation of an abstract idea along with "do it on the Internet" or "do it with generic components," but instead an improvement to an existing technological process, satisfying step two.35 In McRO, the patents involved automating a 3-D animator's tasks, through rules that produced more realistic-looking animated speech by considering the differences in mouth positions for similar phonemes based on context.36 Here, the court found, the claims did not simply automate what human animators had previously done subjectively; instead, the claims included specific, limited mathematical rules.37 Thus, the claims were limited to a specific process using particular information and techniques-not all approaches that might use differ ent rules or different techniques.38 This was a patentable, technological improvement over manual 3-D animation techniques-not an abstract idea and, thus, patent-eligible. "41 Thales Visionix dealt with a system for tracking objects, including two inertial sensors and an element using sensor data to calculate the orientation of a tracked object relative to a moving platform.42 These claims, the court found, are not merely directed to the abstract idea of using mathematical equations, but "directed to systems and methods that use inertial sensors in a non-conventional manner" to reduce measurement errors.43 Thus, these claims were not directed to an abstract idea, and there was no need to proceed to step two-these claims were patent eligible.44 B. Not Technological Solutions to Technological Problems- Just Abstract Ideas Without Something More While the above cases, plus the earlier DDR Holdings, stand for the proposition that claims will meet the requirements of Alice if they are "directed to a specific implementation of a solution to a problem in the software arts"45 or the "claimed solution is necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks,"46 in many more cases the claims have been found abstract, without an inventive concept that amounts to the "significantly more" of Alice, and have fallen. In In re Smith, the inventors claimed a variation on the card game Blackjack.48 These claims were found unpatentable because drawn to an abstract idea.49 And the use of conventional playing cards, either physical or virtual, was a purely conventional activity; appending purely conventional steps to an abstract idea did not supply a sufficiently inventive concept to satisfy step two of Alice.50 This did not foreclose all gaming inventions, the court noted-a game using a new or original deck of cards might survive step two of Alice and indeed be patent-eligible subject matter.51 Money and cards aside, most Federal Circuit subject-matter-eligibility rulings during the survey period have involved software and the Internet. "59 And the patent did not "provide an inventive solution to a problem in implementing the idea of remote delivery of regional broadcasting; it simply recites that the abstract idea of remote delivery will be implemented using the conventional components and functions generic to cellular telephones"-not enough to satisfy Alice step two.60 In Affinity Labs of Texas, LLC v. Amazon.com Inc., the representative claim was "directed to a network-based media system with a customized user interface, in which the system delivers streaming content from a network-based resource upon demand to a handheld wireless electronic device having a graphical user interface.