Cellspin Soft v. Fitbit, Moov, Nike, Fossil, etc. (Fed. Cir 2019)
The district court dismissed Cellspin’s infringement lawsuit on the pleadings — finding the asserted claims unenforceable as a matter of law under 35 U.S.C. § 101 (ineligible abstract idea). On appeal, the Federal Circuit has vacated — holding instead that the early-stage dismissal was inappropriate because the patentee’s amended complaint included “specific factual allegations” that, when accepted as true, showed a plausible inventive concept sufficient to satisfy Alice Step 2.
The court explains here that under Aatrix, “plausible and specific factual allegations that aspects of the claims are inventive” are sufficient to overcome a pleadings-stage motion to dismiss. “[T]he specification need not expressly list all the reasons why this claimed structure is unconventional” so long as the arguably inventive elements are “recited by the claims.”
Here, the claims recite a sensor with Bluetooth. The claims recite a “two-step, two-device structure requiring a connection before data is transmitted.” And, the complaint identified this structure as a concrete and inventive application that goes beyond the abstract idea of “acquiring, transferring, and publishing data and multimedia content on one or more websites.” The appellate panel found that “[t]he district court erred by not accepting those allegations as true.”
On remand, the case will move to summary judgment stage — moving beyond the mere allegations and looking at the evidence produced by both parties. The burdens of proof and presentation at summary judgment may be confusing. Eligibility is a question of law that does not necessarily require any evidentiary conclusions by the court. However, we would expect that the patentee here will present some amount of evidence (probably expert testimony coupled with documentation) potentially sufficient to support a prima facie case of inventive concept under Alice Step 2.
The term inventive concept sounds very patent-like, but the law remains confused about more precise qualities of the term. A patent claim directed to an abstract idea (or law of nature) can still be patented so long as it also recites an “inventive concept.” Inventive Concept:
- Something more than the application of an abstract idea using “well-understood, routine, and conventional activities previously known to the industry.”
- Enough to “transform an abstract idea into a patent-eligible invention.”
- More than simply “using conventional and well-understood techniques.”
Here, the court held that the patent itself must include the concept (and it must be particularly claimed) but need not explain in the specification that it represents the inventive concept. What is not clear is how directly inventive concept relates to other patentability concepts such as novelty, obviousness, and utility.