Shout out to Gene Quinn for publishing my short piece in IPWatchdog this week on what we both feel is an important development at the Federal Circuit: two rulings within a week of each other vacating lower court determinations of patent ineligibility.
I’m optimistic about the court’s future approach to reviewing such decisions!
In Berkheimer v. HP on Feb. 8, the Court reversed summary judgment of ineligibility with respect to some of Berkheimer’s claims. This after having noted—hold your breath!— that whether a claim element is well-understood, routine, and conventional is a question of fact. Thanks: I needed that!
This Wednesday, Feb. 14, it happened again in Aatrix Software v. Green Shades, with the Court vacating a Rule 12 dismissal for lack of patent eligibility because of issues of claim construction and fact, which must be interpreted for Rule 12 in the light most favorable to the non-movant.
A Valentine for the Federal Rules of Civil Procedure! An approach based on the question of fact!
I hope these decisions mark the beginning of a broader recognition of the underlying facts related to patent eligibility and the proper procedure required for Rule 12 dismissal. And that they don’t just end up being two rare survivors in the carnage that has resulted from the Alice decision.
More detail in my piece on IPWatchdog.