Secure Axcess v. PNC Bank (Fed. Cir. 2017) (en banc denied)
In its original panel decision, the Federal Circuit narrowly construed the Covered Business Method statute – holding that CBM review is only available when the claims themselves are directed toward a financial service. I previously wrote:
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.”
The challengers then petitioned for en banc review. That petition has now been denied – although over vigorous dissent. (6-5 denial, with Judge Stoll not participating). As the Federal Circuit continues to be divided, it is most interesting to consider the sides that have formed:
- Supporting Rehearing (and broader scope of CBM review, and broader 101 application): Chief Judge Prost and Judges Lourie, Dyk, Wallach, and Hughes
- Against Rehearing (for narrower CBM review and reduced 101 application): Judges Moore, Taranto, O’Malley, Reyna, Newman, and Chen.
Judge Plager also sat on the original panel, but his senior status precluded his voting on the en banc rehearing question.