What If the CAFC Took Their Own Advice?

It makes no more sense to ridicule patents that take advantage of basic digital building blocks than it would to ridicule 20th Century mechanical inventions.

 

Patrick Anderson Image by: Patrick Anderson | November 7, 2017

Recently, in In re Cray, the CAFC interpreted the Supreme Court’s holding in TC Heartland and provided a 3-part test for district courts to apply when deciding venue issues. (See In re: In re: Cray Inc for analysis on Cray.) In the course of rendering its decision, the CAFC noted the following:

“In this new era, not all corporations operate under a brick-and-mortar model. Business can be conducted virtually. Employees increasingly telecommute. Products may not, as a rule, be warehoused by retailers, and the just-in-time delivery paradigm has eliminated the need for storing some inventory.”

This seeming self-awareness is curious in light of the CAFC’s Alice decisions that fail to recognize that our technology has also changed significantly since 1985. Consider the following, equally true, statement on innovation that mirrors their understanding of modern business:

In this new era, not all corporations inventions operate under a brick-and-mortar model on tangible itemsBusiness Improvements can be conducted made digitallyEmployees People increasingly telecommute. Products may not, as a rule, be warehoused by retailers at all, and the just-in-time delivery “__________-as-a-service” paradigm has eliminated the need for storing some inventory owning and operating equipment.

Furthering our intellectual honesty, it makes no more sense to ridicule patents that take advantage of basic digital building Tower Crane Collapse in Miami in Irmablocks than it would to ridicule 20th Century mechanical inventions. After all, no one would instinctively call US Patent 3,939,988 abstract, but this tower crane is merely a collection of “generic” mechanical components (like steel trusses, cables, pulleys, and gears) that come together to perform an abstract idea, like lifting heavy objects off the ground, or falling over during hurricane force winds.

Just like the ‘988 undoubtedly solved construction problems of the 60’s and 70’s, modern inventions aid our digital economy and solve actual problems faced by technologies companies today.  These problems are, no doubt, different from those experienced in the brick-and-mortar world, but the solutions nevertheless deserve consideration on their own merits under the rules set forth for definiteness, novelty and obviousness.

 

 

 

 

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