October 9, 2016
Affinity Labs v. DirectTV et al (CAFC 2015-1845) is another instance of willy-nilly patent ineligibility. A CAFC panel found "the claims are directed not to an improvement in cellular telephones but simply to the use of cellular telephones as tools in the aid of a process focused on an abstract idea. That is not enough to constitute patentable subject matter." Apparently, tools are only useful if their process is not focused on abstract idea. A confession in the opinion makes the large point: "we have acknowledged that 'precision has been elusive in defining an all-purpose boundary between the abstract and the concrete.'"
The abstraction of patent law into utter arbitrariness continues. In Intellectual Ventures v. Symantec and Trend Micro (CAFC 2015-1769), a CAFC panel finds virus-protection software an abstract idea, ineligible for patent protection. The court is still unable to draw a clear line of patentability, instead relying on gibberish ("the category of abstract ideas is not limited to economic or commercial practices or methods of organizing human activity; an inventive concept sufficient to transform the claimed abstract idea into a patent-eligible application"). Judge Mayer, in concurrence, confuses invention with free speech, opining the non sequitor that "patents constricting the essential channels of online communication run afoul of the First Amendment." Mayer opines that "claims directed to software implemented on a generic computer are categorically not eligible for patent." No one in their right mind has any idea, abstract or not, what constitutes a "non-generic" computer, as all computers are functionally equivalent (function being the sine qua non of utility, which is what patents are all about). What is clear is that large corporations now have little to fear, except lawyers fees, from any method patent that involves a microprocessor.
Another Bite For The Apple
In Apple v. Samsung (2015-1171), the CAFC once again demonstrated its lawless bias and caprice, reversing an appeals panel to reinstate the erroneous obviousness decision by the district court, finding for Apple against Samsung (no surprise there). Judge Reyna, in dissent: "The majority's en banc review is simply a do over."