For CBM Review: _Claims_ Must be Directed to Financial Service

by Dennis Crouch

This case represents an important decision limiting the scope of Covered Business Method reviews.  However, its short consideration of agency-deference leaves it open to further challenge. 

Secure Axcess v. PNC (and other banks) (Fed. Cir. 2017) [secureaxcess]

The America Invents Act created a temporary mechanism (8-year) for challenging certain “covered” business method patents.  The program will sunset for new petitions in the “Transitional Program for Covered Business Method Patents” (“CBM review”) sunsets on September 16, 2020. The program allows for CBM patents to be challenged on any ground of patentability (e.g., Sections 101, 102, 103, and 112) and is not limited to post-AIA patents.

Not all business method patents fit within the program, but only those covering non-technological inventions related to a financial product or service.  In particular, the defintion states:

For purposes of this section, the term “covered business method patent” means a patent that claims a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service, except that the term does not include patents for technological inventions.

AIA Section 18(d)(1).

Here, Secure Axcess’s patent covers a computer security method that uses an authenticity key to “create formatted data” that is then sent to another computer to be used to locate an authenticity stamp from a preferences file. Patent No. 7,203,838.   Although the the patent is not limited to financial services, the patentee has sued dozens of banks and financial service providers for patent infringement.  In particular, it appears that the patentee has only sued financial service providers.

The PTAB determined that the patent here fits the CBM definition. On appeal, however, the Federal Circuit reversed holding that “the patent at issue is outside the definition of a CBM patent that Congress provided by statute.”  This decision follows the court’s recent decision in Unwired Planet, LLC v. Google Inc., 841 F.3d 1376 (Fed. Cir. 2016).

Claiming Financial Services: In its decision, the court walked through the statute – noting that the focus is on the claimed invention rather than the asserted marketplace or potential uses of the invention.  Thus, the relevant question is not how the invention is used, but rather whether the claims are directed to a financial service.  According to the court, any other reading, would “give the CBM program a virtually unconstrained reach.”

Statutory Interpretation – A Question of Law: A very interesting aspect of the decision is the standard-of-review.  Both parties suggested that the USPTO should be given some deference of its own interpretation of the statute.  With only limited discussion, the Federal Circuit rejected that suggestion and instead held that statutory interpretation is simply a matter of law, reviewed de novo on appeal:

[T]he issue here is whether the Board properly understood the scope of the statutory definition. That is a question of law.

The court did not, however cite or refer to Chevron or other Supreme Court precedents requiring deference to certain agency interpretations of law.

= = = =

The majority opinion was penned by Judge Plager and joined by Judge Taranto. Judge Lourie wrote in dissent.   The dissent would expand the scope of CBM to include patents directed to financial services even when claims themselves are not expressly limited to financial services.  In this case, the exemplary embodiment of the invention uses the security mechanism for financial services.  Further, the only example URL in the patent is “bigbank.com.”  Judge Lourie also found the patentee’s “litigation pattern” relevant to the financial services use (having asserted the patent against dozens of banks, and nobody else).

Of interest for administrative law folks, Judge Lourie also failed to consider whether deference should be given to PTO interpretation of the statute.

= = = = =

In a parallel decision, the Federal Circuit today issued a R.36 judgment (improperly in my view) affirming the PTAB’s cancellation of the the claims of a family member patent as obvious. U.S. Patent No. 7,631,191.

 

84 thoughts on “For CBM Review: _Claims_ Must be Directed to Financial Service

  1. Supremes reverse CAFCs cr@p decision in Lifetech 8-0, as I predicted when the Chen’s nonsense opinion was published.

    Enjoy.

    And, yes, the “great” Hal Wegner did refer to Chens decision as a “tour de force.” It wasn’t a “tour de force.”

    1. And the analysis, textual and by reference to 271(f)(2), is exactly as I and Jason laid it out here for everyone.

      Presumably this surprises nobody.

    2. I wonder if you did predict this. Your history is one of refusing to engage in predictions for fear of exposing your incompetence in patent law.

      1. Your history is one of refusing to engage in predictions for fear of exposing your incompetence in patent law.

        And the path 0 l0 gi cal l i @r shows up right on cue. Too funny.

        Anyway, read up:

        link to patentlyo.com

        This is like one of about 100 comments I’ve wrote explaining how and why the Supreme Courts were going to reverse the CAFC.

        Note that I also recognized that the best way to resolve the case was to address the “single staple item of commerce” issue. It was a slam dunk. And the Supremes dunked it.

        1. But, MM, was this a prediction really? Or would it be more properly be classified as one of your propaganda statements against patents? You always “predict” the outcome as being anti-patent and make up loads of stuff.

          Doesn’t appear to be a real prediction to me, but just another one of your screeds that just happened to be taken up by the l00ns at the SCOTUS.

          You have consistently refused to engage in prediction competitions with me.

          1. You should read all the comments on that thread – Malcolm’s attempt here to imply that he was 100% correct, or even that he laid out the case as the Supreme Court rendered it (or the disagreements that he had with Jason) is NOT aligned with what he actually stated previously.

            Yes, he did get a few morsels correct – but that’s like predicting that the Court will look for a way to stiff patent holders: that’s a prediction even blind squirrels will get more often than not.

          2. Look at the Bobbsy Twins getting all choked up. Funny.

            Meanwhile, everything’s archived, including my analysis and my predictions and my endless effort to get pititful “anon” to make his prediction (I don’t recall that he ever found the guts — po widdle baby).

            This was probably the easiest case the Supremes have had in a while. Also the easiest one to predict.

            Of course, you have to know a little bit about the law. Not much more than that. Just a little bit. Poor, poor “anon.” At least he has NWPA to keep him warm at night and to protect him from all those bad ol’ “commies” and terrorists and such.

            LOL

    1. It definitely reduces the patent laws to equity. A judge can invalidate any claim they don’t like. It is decisions like Alice that erode our democracy. The way it works is that as the justices and fed. cir. judges continue to act more like legislators and disrespect the Constitution and the laws, the respect they get from people gets lower and lower. And, then the institutions are so weakened that they can be wiped.

      (For example, 15 years ago, I would never have said it would be a good idea to dissolve the CAFC, and then reform it to rid the court of the Google appointments. I would have thought it un-American and against the rule of law. Now, with appointments to the CAFC having been sold to Google, I would say it is a great idea.) That is how you lose your country. One step at a time.

      1. And, just ask the average person what they think of justices of the SCOTUS. Basically, the Justices think of themselves as great august people. The average person: as slimy two-faced scum that will do whatever they feel like.

        Who would think it was a bad idea to wipe the SCOTUS? We could dissolve it and then reform it. You see the President and Congress could do this at least constructively.

        Think about that Lemley as you advocate for anti-patent judicial activism when you should be asking for new laws instead of Google judges changing the laws instead of applying the laws.

          1. But, the Justices integrity is in question. That is at the heart of the problem. And, the President and Congress can be far worse. That just adds to the instability.

        1. just ask the average person what they think of justices of the SCOTUS. Basically, the Justices think of themselves as great august people. The average person: as slimy two-faced scum that will do whatever they feel like.

          In fact, at every point during the last 50 years at least 50% of the public has expressed “a fair amount or a great amount of trust” in the Supreme Court.

          You’re nothing more than a s@ck of human filth, NW. And your bff “anon” has your ign0rant stink all over him.

  2. The court did not, however cite or refer to Chevron or other Supreme Court precedents requiring deference to certain agency interpretations of law.

    I am not sure why deference to administrative agencies has acquired a political valence, but it definitely has. Despite that fact that it was a Republican court that gave us Chevron, and a Republican justice (Scalia) who laid the intellectual foundations on which Chevron jurisprudence is built, it has come to pass that movement conservatism has Chevron in its crosshairs. This means that it is only a matter of time before Chevron is gone.

    The House of Representatives has passed the Regulatory Accountability Act—which works a statutory repeal of Chevron—three times now. This year is the first time it has passed with a GOP senate and White House. I expect that it will go through to signing this year, but if it does not, they will bring it up again next term, and the term after that, and the term after that, until it passes. The only question, at this point, is when Chevron is undone.

    With that in mind, a judge would be crazy to cite Chevron unless it is necessary to the holding. From here on out, every time you mention Chevron, you are inviting a subsequent challenge to the continued validity of a decision once the Regulatory Accountability Act is eventually signed into law.

    1. I am not sure why deference to administrative agencies has acquired a political valence, but it definitely has.

      Because the Republican Party is entirely infested with people who do everything they can to destroy the ability of the Federal Government to provide services for anybody. Then when the agencies cease to function because they’ve been kneecapped, the same people will point t the failure as an example of government incompetence. Then they take the money for themselves. This has been pretty much right out there in the open for the past forty years or so.

      To the extent the Republican Party can pack the courts with rightwing ideologues and remove deference to the agencies, they can render every agency toothless (except, of course, for the agencies that will be revamped to terr0rize “the opposition”).

      Any other questions? Maybe you were being sarcastic …

      1. “Because the Republican Party is entirely infested with people who do everything they can to destroy the ability of the Federal Government to provide services for anybody. ”

        Read: Republicans don’t like muh federal gubmit meddling in everyone’s affairs all the time mucking things about in attempts to help muh victims.

        “Then when the agencies cease to function because they’ve been kneecapped, the same people will point t the failure as an example of government incompetence. ”

        Read: Muh federal gubmit is mostly incompetent, but when republicans point this out I like to allege it’s because of “knee-capping” and not inherent incompetence endemic in gubmits the world over and throughout all of time.

        “Then they take the money for themselves. ”

        Read: Republicans steal from the federal treasury.

        “To the extent the Republican Party can pack the courts with rightwing ideologues and remove deference to the agencies, they can render every agency toothless (except, of course, for the agencies that will be revamped to terr0rize “the opposition”).”

        Read: I’m accusing Republicans of packing the courts with ideologues to remove deference to agencies so that the agencies will be toothless (except for handing out entitlements to individuals that empower those individuals to then have teeth, which I will btch about every single day), excepting for agencies that can be changed into becoming terrorist cells to torment muh victims.

        1. muh victims

          Dennis apparently wants to keep certain facts out of the reach of his readers but these “victims” that 6 like to mock include r@pe victims and molested children.

          And both 6 and our mani@c-in-chief (a Republican) both went out of their way to defend the oh-so-unfair treatment of a typical mis 0gynist h@tem0nger who engages in this same mockery — and who just happened to work for Emperor Tangerine’s chief strategist who (suprise!) has advocated for the destruction of the entire existing system.

          This is the modern Republican party, Dennis.

          Stop trying to pretend otherwise because it makes you look really silly. And you don’t have to worry about alienating your awesome Republican readers because, hey: they’re adult Republicans. They just don’t like to hear their brilliant plans discussed in public without the “explanations.” Because you know how serious those explanations are.

          1. This is the modern Republican party, Dennis.

            Stop trying to pretend otherwise because it makes you look really silly. And you don’t have to worry about alienating your awesome Republican readers because, hey: they’re adult Republicans. They just don’t like to hear their brilliant plans discussed in public without the “explanations.” Because you know how serious those explanations are.

            What the H does this have to do with patent law on a patent law blog?

          2. “Dennis apparently wants to keep certain facts out of the reach of his readers but these “victims” that 6 like to mock include r@pe victims and molested children.”

            A. I and other people saying “muh victims” are not mocking the actual victims re re. We’re mocking your paternalistic treatment thereof, adopting them as your pets as it were. Instead of behaving as a good and decent white cis hetero patriarchy. There’s a difference. One involves feeeeeelings and “social” perverted justice, the other involves law and actual plain ol everyday vanilla “non-social” justice, i.e. actual justice.

            B. No, it actually doesn’t include actual literal victims of crimes prosecuted by the white cis hetero patriarchy, or at least I don’t think that it does from my best lefty training. Though it might. I’m not 10000% learned in the “ways of the lefty”, only like 90%. In so far as leftys have told me the whole point of the “muh victim” narrative is to turn “not victims” into “victims”. For instance, Salon turning a total non-victim that likes children by his own admission into an interbuts celebrity by posting several of his articles in lauding fashion (but then mysteriously baleting them prior to Monday). But if they happen to include a few actual victims in there for good measure, good for them. But usually they don’t, because otherwise Milo, just as a for instance, being a gay jew that was a sex assault actual victim, doesn’t rank highly on their muh victim chart for some reason.

            “has advocated for the destruction of the entire existing system.”

            Metaphorically, like Rick Perry and Ron Paul, not literally like lefties. There’s a difference MM, one day in your white cis hetero patriarchial existence you might want to learn it.

            “Stop trying to pretend otherwise because it makes you look really silly. ”

            There’s only one white cis hetero patriarch looking silly today sir, and that’s you. Trying to oppress on a poor gay Jew who was assaulted. For shame.

            1. We’re mocking your paternalistic treatment [of women/minorities/gays/etc], adopting them as your pets as it were.

              More like treating them like family because … family.

              white cis hetero patriarchy … involves … plain ol everyday vanilla “non-social” justice, i.e. actual justice

              Impossible not to laugh at this self-serving nonsense.

              Mylowbrow, just as a for instance, being a gay jew that was a sex assault actual victim, doesn’t rank highly on their muh victim chart for some reason

              Gosh, it’s just impossible to understand why there isn’t more pity for this unfeeling dirtpile. Except of course from his posse of frustrated pimply boyfans.

              Trying to oppress on a poor

              He’s poor? Really? Also: nobody’s oppressing him. He’s just being mocked and scorned. And he has bragged about lacking human emotions so it’s not clear why that should be a problem for him or anyone else. Seems like maybe your fee-fees have been hurt, snowflake, because one of your heroes slipped and fell. Boo hoo. Get used to it.

    2. “I am not sure why deference to administrative agencies has acquired a political valence, but it definitely has. Despite that fact that it was a Republican court that gave us Chevron, and a Republican justice (Scalia) who laid the intellectual foundations on which Chevron jurisprudence is built, it has come to pass that movement conservatism has Chevron in its crosshairs. This means that it is only a matter of time before Chevron is gone.”

      The actual reason, Greg, is that “agencies” have now been created for just about everything, and thus get their say so on just about all the regulations, including contentious ones. And thus the agencies get a backdoor to bend regulations/laws slightly to their will. On occasion these agencies get “packed” (or just staffed temporarily) with democrats, or worse, lefties, who then perv ert the interpretation of the regulations/laws they’re tasked with administering into something that it never was through “interpretation”, which courts are then expected to defer to under chevy. The opposite could of course occur, and republicans will repeal most of that g arbage (as you’ll be seeing under Trump). But, in any event, all this med dling “under the surface” of the law is not exactly the way our 3 branch gu bmit was set up to work.

      See for instance the dear colleague letter where the office for civil rights determined that they should be in charge of bathroom policy for the whole nation because in 1975 a la wl was passed that they could bend under abs urd inter pretation to their will. Thus, the dear colleague letter ke rf uffle has occurred. And depending on what deference they get from the courts, perhaps it might stand or might not. In other words, the agencies (democratically controlled) made a power play and now it’s going to bu rn them, and their “expe rtise” for a long time to come.

      link to scotusblog.com

      1. The opposite could of course occur, and republicans will repeal most of that g arbage (as you’ll be seeing under Trump).

        Could?!? Of course it occurs under Republicans. Need I belabor the point that the original Chevron decision arose when Pres. Reagan wanted to ignore statutory mandates in the Clean Air act, so he cooked up some highly original interpretation under which he was not obliged to stop illegal air pollution?

        Each side has their own preferred abuses of Chevron deference. Republicans want to ignore the Clean Air and Clean Water Acts. Democrats want (as you note) to extend Title VII and Title IX to confer absurdly expansive powers on the federal government in antidiscrimination law. Regardless of the particular instances of over-reach, however, both sides do it and both sides enjoy citing Chevron when someone sues to stop them from their favorite over-reach. That is why I am kind of surprised to see the sustained loathing that is building on the right against Chevron. In theory, administrative deference should have no political valence. Chevron benefits the winner of the most recent election, regardless of which party that might be.

        Nevertheless, a Republican Congress is moving to eliminate Chevron deference at exactly the moment when they control the White House. I do not mean this as any sort of criticism, however. In a sense, it is rather noble of them to vitiate Chevron at a time when it runs counter to their short-term political expediency to do so. I am just surprised at this, not outraged.

        1. “Could?!? Of course it occurs under Republicans. ”

          Ok then, sounds like you’re familiar with it. I don’t know why you said you didn’t understand why they were wanting to get rid of it.

          Republicans, unlike the goobers on the left who like to run fast and loose, don’t like to “count” on all the time controlling the entire gubmit to have their will implemented (aka keeping the federal gubmit out of everyone’s backyard, schools, businesses, local gubmits etc etc.). They’d prefer it if they’d be allowed to take a few years off from controlling the whole federal gubmit while still having their will implemented unless the other side can actually get the lawl changed (rather rare as you know).

        2. “That is why I am kind of surprised to see the sustained loathing that is building on the right against Chevron. In theory, administrative deference should have no political valence. Chevron benefits the winner of the most recent election, regardless of which party that might be.”

          Republicans are playing a long game bro. An infinitely long game as far as they’re concerned. They can’t be leaving these things up to the winds of chance.

        3. “In a sense, it is rather noble of them to vitiate Chevron at a time when it runs counter to their short-term political expediency to do so.”

          Correct. They’re playing the long game, and it’s becoming quite apparent their long game needs the rules to be the opposite way around.

          1. They’re playing the long game

            It doesn’t need to be “long”, of course. Just murder a bunch of people (or let them be murdered), use the ensuing war to justify the creation of an authoritarian police state, and burn everything down.

            It’s all teed up and ready to go, you know.

            1. “It doesn’t need to be “long”, of course. Just murder a bunch of people (or let them be murdered), use the ensuing war to justify the creation of an authoritarian police state, and burn everything down.”

              You are very correct MM, that’s actually very true. Let’s hope Trump will be able to stop the lefty plan to destroy upon Merica so that what you noted need not happen and never happens in at least my lifetime, or my grandchildren’s either. You’d best start praying that he succeeds in stopping the lefty plan asap. If he fails, what you noted will happen in at least my lifetime, if not yours, but not in the next 20 years thanks to Trump getting in.

              Of course if you were implying Trump will be the one to pull that maneuver off, lol, nah. Not enough of a strongman’s strongman. He’d rather just make a deal.

              1. If he fails,

                I’ve got some bad news for you: he’s already failed miserably.

                my grandchildren

                Because 6 really cares about children! At least the 13 year old ones.

            2. “It’s all teed up and ready to go, you know.”

              Yep, the lefties have teed it right up for any passing strongman that’s strong enough and has the will to do it. Which is why Trump was necessary to go ahead and take it off the tee and put it back in the golf bag safe and sound.

  3. “For purposes of this section, the term “covered business method patent” means a patent that claims a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service, except that the term does not include patents for technological inventions.”

    How can a claim to an apparatus ever not be technological?

    1. How can a claim to an apparatus ever not be technological?

      Please call your malpractice insurance carrier so they know that you are confused about this in 2017.

    2. “Directed to”

      as well as:

      “Gist/Abstract”

      Keep on mind, you asked “how…”

      You did not ask if this “how” was proper.

  4. OT but today the Supreme’s denied cert in:

    16-859 IPLEARN-FOCUS V. MICROSOFT CORP.

    Claims were tanked under Alice, then Rule 36’d by the CAFC.

  5. The other opinion handed down today (non-prec) was In re Depomed, an appeal from an IPR in which the challenger opted not to participate in the appeal. I have no idea why this was a non-prec decision, given that the facts were straightforward and the CAFC’s opinion was clear and useful to other litigants. Still and all, what I really want to highlight was a line in Judge Reyna’s concurrence that bids fair to take the prize for understatement of the year. Slip op. at 4:

    An IPR… is in many ways unlike ex parte prosecution.

    Yes, in pretty much every way possible, an IPR is unlike ex parte prosecution. Except that the PTO applies BRI to both, I cannot think of a single meaningful similarity between an IPR and ex parte prosecution.

    1. Judge Reyna’s concurrence is a supremely well written essay on how obviousness is supposed to be analyzed in a litigation context. It is a shame that this decision was non-prec, because the Fed. Appx. publication probably ensures that only a comparative handful of people will ever read it. It deserves careful study.

      1. Judge Reyna’s concurrence is a supremely well written essay on how obviousness is supposed to be analyzed in a litigation context

        Maybe a bit over-wrought, but I agree: worth reading.

    2. Greg, there is pretext reason and there is the subtext, but real reason for IPRs. The pretext was sold to Congress by so called “honest” lobbyists, the same people now backing an amendment to 101. But the real reason was to tank patents asserted against the big boys, the guys who really control the IP lobbying organizations — the efficient infringers crowd. BRI is part and parcel.

      1. the same people now backing an amendment to 101.

        Not quite.

        While there may be some overlap, there is certainly not the “identity” that you wish to use as your lead in for criticism.

      2. Anything is possible, Ned, but I confess I am not following the logic of your assertion. IPRs make it easier to wipe out a claim on 102/103 grounds. The IPO’s 101 amendment makes it harder to wipe out a claim on 101 grounds.

        Why would the same organization of “efficient infringers”* want to make it easier to destroy a patent on 102/103 grounds, but harder to destroy on 101 grounds. Would not infringers, by definition, prefer that patents be easier to destroy along every dimension?

        * “Efficient infringer” seems to me to be one of these hollow instances of flatus vocis, like “strong patents” or “patent maximalist,” devoid of objective content and useful merely as an epithet by which to disparage someone in a way that can never be disproven. It means a million different things in a million different mouths, and tells the reader more about the one who said “efficient infringer” than it tells about the person thus characterized.

        1. Greg,

          1. I don’t trust a thing coming out of the IPO because that organization backed Harmonization.

          2. IBM only pursues its self interest. They are very good at propaganda. They have a large pile of patents that are affected by the repeal of State Street Bank.

          3. Given the disasters of ’52 and 2011, we don’t need any more legislative monkeying with fundamental patent law. To much collateral damage can and will happen. What can go wrong, will. British conservativism vs. French Revolution radicalism, and all that.

          4. The core jurisprudence on 101 has not changed in 150+ years. What changed recently was the radicalism of Judge Rich who sought to challenge the Supreme Court. The IPO proposal is an attempt to impose the worst of Judge Rich’s radical thinking on the rest of us.

          1. Ned,

            1. Many of your views align with the backing of harmonization (cue MaxDrei and EPO uber alles inserts)

            2.All organizations pursue their own self interests (we need to eliminate Cotizen’s United and at the least make sure any corporate “citizen” has the same “buy-in” to our Sovereign).

            Your “version” of the disaster of ’52 is what had propelled the US to be the innovation center of the world. You really need to stop chasing your Windmills.

            4. The core jurisprudence DID change in 1952. Somehow, you both acknowledge that (your comment 3) and disavow that at the same time.

            Maybe it is just time for you to be inte11ectually honest…

      1. ???

        If the government lacks standing to participate in an appeal from a holding of unpatentability by the PTAB, then how did Brenner v. Manson make it to the SCotUS? How do ex parte appeals to the CAFC even happen?

        I am not necessarily opposed to the position that you are taking up here, Ned. It would work fine for me to know that when I appeal to the CAFC, I have no opponent. I am just having a hard time wrapping my head around the idea that nearly everything about the PTO’s participation in judicial processes is—on your theory—constitutionally infirm.

          1. Ah, got it. The argument you are advancing is more restrained than what I understood you to be arguing. Fair enough.

            Does that mean that if an applicant in an ex parte re-exam is dissatisfied with the outcome, and takes an appeal, that there is no one on the other side of the appeal?

            1. Greg, that’s right.

              I took out a whole section of my briefs talking about the inconsistency between allowing the government to revoke an issued patent by itself and not even being able to go to court and sue for invalidity.

              See, McCormick Harvesting for more on this.

  6. Oddity/futility of this particular case is that the PTAB cancelled the claims on obviousness grounds. That means that the case could have been brought as an IPR rather than CBM and proceeded to this same outcome. On remand, we’ll see whether the PTAB takes the power to transform the case to an IPR…

    1. There is no remand. The board decision was reversed and vacated. The court troubled itself to say “[a] remand to the Board… would be a wasteful act,” slip op. at 21. This case is done.

  7. Is the PTAB record available to litigants in District Court (e.g. the obviousness finding?) Too bad it’s a coupla million bucks to get to a 103 determination in court. What a waste.

    Too bad also that “technological” remains undefined. Of course, it can’t be defined outside of knowing it when they see it, but that’s the point.

    1. Off topic:

      Martin, I don’t think you should be surprised at the ‘Big Dog’ posting that article, as that place is fundamentally a click mill. One of the primary contributors (Steve Brachmann) is literally paid to churn out copy that looks like content, i.e., summaries of pre-grant publications.

      1. Ben, there is a universe of clicks they COULD get, but that item runs against the grain.

        The basic ideology of the Dog and his toadies: Better that 10 innocent firms are destroyed than one infringer go free.

        1. ?

          Toadies…?

          Really?

          Your view smacks of “the Ends justify the Means” doubled down with ad hominem for those who may feel differently than you (and who may actually know the law, the history of the law, and the facts of the current controversies brought about because the judicial branch has overstepped its role in patent law).

          But hey, thanks for sharing your feelings.

          1. Uh huh. I’m not a newb around these parts anon. Everyone knows who I am and what I am about.

            And you too. And Mr. Quinn and his crew of anonymous toadies.

            And since you are wrong about mostly everything, it’s easy to see that the judicial branch’s failures to step up between 1990 and 2010 are the root cause of most of the current controversies.

            1. Your feelings are noted.

              As is the fact that you ARE a newb when it comes to actual patent law as written by Congress, the history of that patent law, and pertinent facts about both that show just how much the Supreme Court is overstepping its proper role in interpreting the statutory law that is patent law.

              You want to celebrate because the Court is activist, not understanding that that is the very problem that needs to be addressed.

  8. One of the exemplary claims which was (unsurprisingly) found obvious by PTAB:

    17. An authentication system comprising:

    an authentication processor

    configured to insert an authenticity key into formatted data to enable authentication of the authenticity key to verify a source of the formatted data and to retrieve an authenticity stamp from a preferences file.

    Dennis writes: Although the the patent is not limited to financial services, the patentee has sued dozens of banks and financial service providers for patent infringement. In particular, it appears that the patentee has only sued financial service providers.

    In addition, the specification was filled with references to banking and the only examples were interactions between bank customers and banks.

    What the CAFC has done is create an absurdity where dependent claims limited somehow to “a financial service” (e.g., wherein the processor is used in a financial service) are subject to CBM review but broader claims aren’t, even when the spec and description are focused on financial services and where the patentee has specifically targeted financial service providers with its claims.

    This isn’t a case where a claim to some kind of light bulb is being subjected to CBM review because “a light bulb can be used in a bank.” It’s not even close to that.

    The court did not, however cite or refer to Chevron or other Supreme Court precedents requiring deference to certain agency interpretations of law.

    Calling David Boundy! Calling David Boundy!

    LOL As if.

    1. I don’t understand your rant. Is it your position that Banks should be allowed to infringe patents? That is a very un-MM-like position.

      If the patent were to pen chains and it turned out that 97% of the infringers were banks, would you fault the patent owners for suing banks? Would the patent be to a covered business method because Banks are the ones that use pen chains?

      What if the patent were to parking lot paint and the biggest infringer where Chemical Bank (Cause they know a guy that knows about Chemicals). If the patent owner sued Chemical Bank would that make the patent a covered business method?

      Jeeezzz

      1. Is it your position that Banks should be allowed to infringe patents?

        Nope.

        What if the patent were to parking lot paint

        If the paint was claimed as a structurally distinguished composition of matter, it wouldn’t qualify as a CBM.

        I know this is s00per d00per nuanced stuff, way about your pay grade.

      2. “Is it your position that Banks”

        His position that people suing banks for claims that are blatantly directed to financial services (and which are alleged in court papers to cover such, by the patentee, as a bonus) should be subject to CBM review. And that such should be the case even if the claims themselves don’t appear on their face to necessarily be a financial service by their wording, though they do appear to be broad enough to cover such.

        1. Yes. And My position is that one sues infringers. If it is Banks that are infringing your patent, you can’t sue ice cream shops.

          The claimed process (see claim 17 at post 1.0) could just as easily be applied to video transfers. But Netflix isn’t infringing. Banks are.

          That doesn’t make the claim a covered business method.

          1. “The claimed process (see claim 17 at post 1.0) could just as easily be applied to video transfers. But Netflix isn’t infringing. Banks are.”

            Funny that they knew that it would be banks when drafting the spec.

            “That doesn’t make the claim a covered business method.”

            But a depending hypothetical depending claim specifying that the method is used in a financial transaction would be?

            lol, like MM stated, that is absurd. Especially in this situation.

            Maybe congress needs to step in, maybe not.

            1. So then all patented inventions that might be used by a business are covered business methods?

              Say a patent to a new fuel injector is a covered business method because claim 12 indicates that the injector might be used in the manufacture of an automobile?

              1. “So then all patented inventions that might be used by a business are covered business methods?”

                Probably not Les. Courts may have to use their brains a little bit in drawing the line.

                1. ” Courts may have to use their brains a little bit in drawing the line.”

                  Well I haven’t seen any evidence of that, including in the newly reported case on the main page.

                  But it any event, it was your logic and your defense of MM’s position I was challenging.

                2. You are correct that in the case before us they didn’t use their brains to try to distinguish such cases from those that shouldn’t be such cases. Instead, they tried to be pedantic about their reading of the statute to throw this case into the clear.

                  That was MM’s critique/position. That they were not using their brains. And you are correct that you are “challenging” his position. When you probably should not be.

                  If the courts do use their brains, rather than a pedantic reading of the statute, then this case would have been deemed a CBM most likely.

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