The Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank Int’l, 134 S.Ct. 2347 (2014) (“Alice”) has had a significant impact on the patent eligibility of software-implemented inventions under 35 U.S.C. § 101.  In Alice, the Supreme Court held that patent claims relating to mitigating settlement risk in financial transactions using a computer system were patent ineligible. In doing so, the Court set forth a two-part patent eligibility test: 1) Are the claims directed to a patent ineligible concept (e.g., abstract idea); and 2) If so, do the claims amount to significantly more than the patent ineligible concept itself?

The European unitary patent and Unitary Patent Court (UPC) are slated to go into effect in early 2017. These monumental changes will have a significant impact on the ways patent rights are obtained and enforced in Europe.

On July 19, 2016, the District Court for the Western District of Washington (“Court”) dismissed a patent suit because the asserted patents (U.S. Patent Nos. 8,682,959 and 9,049,267) cover ineligible subject matter.  See Appistry, Inc., v. Amazon.com, Inc., et al., Case No. C15-1416RAJ (W.D. Wash. July 19, 2016) (“Order”).  The patents in suit relate to using “[a] hive of computing engines . . . to process information.”  See ‘959 Patent at 8:32-33.  

On July 14, 2016, the U.S. Patent and Trademark Office issued new subject matter eligibility guidance for life science claims following a ruling by the Federal Circuit in Rapid Litigation Management v. CellzDirect, No. 15-1570 (Fed. Cir. July 5, 2016), and the Supreme Court’s decision to deny certiorari in Sequenom v. Ariosa, (788 F.3d 1371 (Fed. Cir. 2015) (cert. denied).  The USPTO noted that the cases do not change the subject matter eligibility framework, but rather “provide additional information and clarification on the inquiry for determining whether claims are directed to a judicial exception” (step one of the Mayo/Alice test).

A recent Federal Circuit decision in Bascom Global Internet Services, Inc. v. AT&T Mobility LLC, gives patent owners another illustration of patent subject matter eligibility under section 101.

On July 5, 2016, the U.S. Court of Appeals for the Federal Circuit issued an opinion vacating the summary judgment of invalidity of U.S. Patent No. 7,604,929 (“the ’929 Patent”) and sent the case back to the District Court for the Northern District of Illinois.  See Rapid Litigation Management Ltd., et al. v. CellzDirect, Inc., et al., No. 2015-1570 (Fed. Cir. Jul. 5, 2016)(“Opinion”).  The ’929 Patent is directed to a method of preserving hepatocytes using multiple freeze-thaw cycles.  This process is distinct from the prior art, which taught that hepatocytes would remain viable only after a single freeze-thaw cycle.