CLS Bank v. Alice Corp.: Abstractness Seems to Be a Problem With No Easy Solution

Today the Federal Circuit Court of Appeals released its decision in CLS Bank v. Alice Corp.  As I explained in a previous post about the case, in recent years, both the Federal Circuit Court of Appeals and the U.S. Supreme Court have struggled on what  35 U.S.C. § 101 means and how and when it limits what can be patented.  As EFF explains on its Abstract Patent Litigation page, things like laws of nature, natural phenomena, and abstract ideas can't be patented.  I helped write EFF's amicus brief in the case.

Today, the struggle continued.  Rather than decide anything, the Federal Circuit's opinion is a mess.  All the court agreed on was this brief "per curiam" decision:

PER CURIAM.
Upon consideration en banc, a majority of the court affirms the district court’s holding that the asserted method and computer-readable media claims are not directed to eligible subject matter under 35 U.S.C. § 101. An equally divided court affirms the district court’s holding that the asserted system claims are not directed to eligible subject matter under that statute.
AFFIRMED

Ten judges decided the case (newly-appointed Judge Taranto did not participate) and there was one vacancy at the time.  As a result, it's not clear this case has any precedential value whatsoever.  (See footnote 1 of Chief Judge Rader's dissent/"concurrence".)  There is a 5-judge plurality opinion by Judge Lourie that holds all the claims patent ineligible.  Two other judges agreed the method and computer-readable medium claims were patent ineligible, but for different reasons than Judge Lourie's plurality.  See Chief Judge Rader's dissent/"concurrence".  Five judges believed the system claims were patent eligible, leading to a 5-5 tie and an affirmance by an equally divided court on that issue. 

Judge Lourie's plurality opinion contains some nice language about when things won't be patent eligible.  For example:

An “inventive concept” in the § 101 context refers to a genuine human contribution to the claimed subject matter. “The underlying notion is that a scientific principle . . . reveals a relationship that has always existed.” Flook, 437 U.S. at 593 n.15. From that perspective, a person cannot truly “invent” an abstract idea or scientific truth. He or she can discover it, but not invent it. Accordingly, an “inventive concept” under § 101—in contrast to whatever fundamental concept is also represented in the claim—must be “a product of human ingenuity.” See Chakrabarty, 447 U.S. at 309.

In addition, that human contribution must represent more than a trivial appendix to the underlying abstract idea. The § 101 preemption analysis centers on the practical, real-world effects of the claim. . . . Limitations that represent a human contribution but are merely tangential, routine, well-understood, or conventional, or in practice fail to narrow the claim relative to the fundamental principle therein, cannot confer patent eligibility.

In a claimed method comprising an abstract idea, generic computer automation of one or more steps evinces little human contribution. . . . Furthermore, simply appending generic computer functionality to lend speed or efficiency to the performance of an otherwise abstract concept does not meaningfully limit claim scope for purposes of patent eligibility. . . . Because of the efficiency and ubiquity of computers, essentially all practical, real-world applications of the abstract idea implicated here would rely, at some level, on basic computer functions—for example, to quickly and reliably calculate balances or exchange data among financial institutions. At its most basic, a computer is just a calculator capable of performing mental steps faster than a human could. Unless the claims require a computer to perform operations that are not merely accelerated calculations, a computer does not itself confer patent eligibility. In short, the requirement for computer participation in these claims fails to supply an “inventive concept” that represents a nontrivial, nonconventional human contribution or materially narrows the claims relative to the abstract idea they embrace.

But since that opinion only got 5 votes out of 10, it's not binding precedent.  Either the Federal Circuit or the Supreme Court will have to work on this issue some more. 

Here are discussions by EFF (suggesting that the Supreme Court decide the case), Patently-O, and Techdirt (which called the opinion "one of the most bizarre and useless rulings ever concerning software patents").