by Dennis Crouch
CardioNet, LLC v. InfoBionic, Inc. (Fed. Cir. 2020)
I have been following this case for the past couple of years because it served as the template for our 8th Annual Patent Law Moot Court at Mizzou back in 2018 (Sponsored by McKool Smith).
In the case, CardioNet sued InfoBionic for infringement (D.Mass.). The district court quickly dismissed the case for failure to state a claim under R. 12(b)(6) – ruling that the claims of CardioNet’s US7941207 are improperly directed at patent-ineligible concepts under 35 U.S.C. § 101.
The ‘207 patent covers a method for identifying AF (atrial fibrillation and atrial flutter) that is associated with stroke, congestive heart failure, and cardiomyopathy. The invention particularly monitors heartbeat variability, including identification of irregular “ventricular beats.” The claims here use off-the-shelf technology to measure heartbeat activity and already existing logic for determining heartbeat variability. The new feature is claimed as “relevance determination logic to identify a relevance of the variability in the beat-to-beat timing to at least one of atrial fibrillation and atrial flutter” and an “event generator” triggered when variability is “relevant.” Claim 1 is included below. (Some patent attorneys will point out that that the combination as a whole is also new).
The district court found that the claimed invention completely flows from the unpatentable idea that AF “can be distinguished by focusing on the variability of the irregular heartbeat.” As such, the claims were deemed invalid.
On appeal, a 2-1 majority has reversed – holding “instead that the asserted claims of the ’207 patent are directed to a patent-eligible improvement to cardiac monitoring technology and are not directed to an abstract idea.” In making this determination, the court looked to the claim language requirements and also
In particular, the language of claim 1 indicates that it is directed to a device that detects beat-to-beat timing of cardiac activity, detects premature ventricular beats, and determines the relevance of the beat-to-beat timing to atrial fibrillation or atrial flutter, taking into account the variability in the beat-to-beat timing caused by premature ventricular beats identified by the device’s ventricular beat detector. In our view, the claims “focus on a specific means or method that improves” cardiac monitoring technology; they are not “directed to a result or effect that itself is the abstract idea and merely invoke generic processes and machinery.” McRO.
Majority Op. The majority opinion was written by Judge Stoll and joined by Judge Plager. Judge Dyk concurred in judgment, but dissented from the majority reasoning.
This is a routine case easily resolved by existing precedent. Under that approach, I agree with the majority that the claims have not been shown to be patent ineligible under section 101. I dissent in part because the majority addresses issues never argued by the parties and appears to suggest approaches not consistent with Supreme Court and circuit authority.
Judge Dyk particularly takes issue with the majority’s statements that:
Step one of the Alice framework does not require an evaluation of the prior art or facts outside of the intrinsic record regarding the state of the art at the time of the invention. . . . [Although it] is within the trial court’s discretion whether to take judicial notice of a longstanding practice where there is no evidence of such practice in the intrinsic record. But there is no basis for requiring, as a matter of law, consideration of the prior art in the step one analysis in every case. If the extrinsic evidence is overwhelming to the point of being indisputable, then a court could take notice of that and find the claims directed to the abstract idea of automating a fundamental practice—but the court is not required to engage in such an inquiry in every case.
Majority Op. at 22. Judge Dyk argues that instead that “limiting the use of extrinsic evidence to establish that a practice is longstanding would be inconsistent with authority. No case has ever said that the nature of a longstanding practice cannot be determined by looking at the prior art.”
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1. A device, comprising:
a beat detector to identify a beat-to-beat timing of cardiac activity;
a ventricular beat detector to identify ventricular beats in the cardiac activity;
variability determination logic to determine a variability in the beat-to-beat timing of a collection of beats;
relevance determination logic to identify a relevance of the variability in the beat-to-beat timing to at least one of atrial fibrillation and atrial flutter; and
an event generator to generate an event when the variability in the beat-to-beat timing is identified as relevant to the at least one of atrial fibrillation