The newest Supreme Court patent eligibility case was recently filed by Rudy Telscher in Consumer 2.0, Inc., D/B/A Rently v. Tenant Turner, Inc. (Supreme Court 2020). Rather than directly challenging Alice Corp., Rently argues that the Federal Circuit has done a poor job of implementing the Supreme Court’s guidance. The Supreme Court decisions on eligibility are focused on avoiding improper preemption. While mouthing the word preemption as a goal, the Federal Circuit has repeatedly ruled that preemption forms no part of its eligibility test.
In Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014), this Court laid out the standards for analyzing patent eligibility under 35 U.S.C. § 101, and explained the main concern undergirding the analysis was one of preemption. This Court did not lay out the exact boundaries of the test, but rather had previously instructed the Federal Circuit may expand on the test so long as it was consistent with the statute. The Federal Circuit however routinely skips the preemption analysis, and has imported a quasi-section 103 analysis into Step Two of the test for determining whether the claims recite only “conventional” features or amount to “something more” than a claim on the abstract idea itself.
The questions presented here are:
1) Whether preemption is a threshold and defining consideration that the lower courts must consider in determining whether a claimed invention is directed to patent eligible subject matter under Section 101, and
2) Whether the courts below have erred in conflating the Step Two conventionality analysis of Alice with the factual prior art patentability analysis of Section 103, without the evidentiary opportunities and protections against hindsight bias afforded by Section 103 and in conflict with this Court’s precedent in Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966)
An interesting aspect of this case is the newness of the patent at issue. U.S. Patent No. 9,875,590. During prosecution, the examiner cited to Alice and rejected the claims as ineligible. The patent applicant then amended the claims to overcome the rejection. Then, during litigation the district court found the claims ineligible as a question of law and that determination was affirmed on appeal.
Claim at issue:
7. A method for providing automated entry to properties, comprising:
making properties available for viewing to invited visitors;
providing an application interface of an application running on a computing system to a property manager, the property manager being a manager, a listing agent or an owner of the property, the application interface prompting the property manager to enter a visitor name and contact information for a visitor, wherein upon receipt of the visitor name and contact information, the application provides the visitor with an invitation to receive automated entry information including code information that is valid during a specified period of time so that the visitor can enter a property by themselves, the invitation being delivered to the visitor electronically, the invitation being applicable only to the property and the invitation requesting identification from the visitor;
placing a lock box or an automated door lock at or near each property;
upon the application receiving and confirming identification information for the visitor, providing, by the application, automated entry information to the visitor that allows the visitor to enter the property, the automated entry information including code information that is valid during the specified period of time;
upon the visitor providing the code information to the lock box or the automated door lock at the property within the specified period of time, the lock box or automated door lock opening to facilitate automated entry to the property;
tracking visitor activities at the properties; and
making information about the properties available within a user interface.