The New Normal? Federal Circuit Affirms Invalidity Under Alice

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The New Normal? Federal Circuit Affirms Invalidity Under Alice


Yesterday, the Federal Circuit issued an opinion in buySAFE v. Google, its latest opinion on patent eligibility after Alice v. CLS Bank, affirming the judgment of the district court that the asserted claims were invalid because they claimed nothing more than the abstract idea of guaranteeing performance of a transaction implemented on a computer. Perhaps the most remarkable thing about this opinion is how unremarkable it is—the court takes the Alice test and applies it as a matter of course.

For those looking for further clues to how the Federal Circuit will interpret and apply Alice, the following features of the opinion may be salient:

  • The ruling affirmed was the grant of a motion for judgment on the pleadings. In affirming this ruling, the Federal Circuit confirmed that patent eligibility can be decided early in litigation based on scrutiny of the asserted patent;
  • The Federal Circuit confirmed that it is a bright–line rule that an applicant cannot patent an abstract idea regardless whether that idea is broad or narrow; and
  • Claiming a computer that receives and sends information over a network is not enough to make an abstract idea patent–eligible. Routine computer activity does not get a patent applicant to the promised land.

Toward the end of its opinion, the panel claims that buySAFE is a simple case in a “delicate area” under “new Supreme Court authority”…which leaves open the question what a close case looks like, and what the court will do with such a case.

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