For some, it appears that this approach involves considering the gist of the invention as claimed. In step one, the court asks whether the claim is directed to or encompasses an abstract idea.
In Alice Corp., the Supreme Court explained a two step process for its abstract idea analysis. The eligibility question will be whether this claim is effectively directed to an unpatentable abstract idea. That condition might, for instance, be that the data file (i.e., movie) is permanently accessible based upon a larger payment, but only available for a seven days based upon a smaller payment. The arguably novel features of the apparatus is found in the claimed software code that (1) receives payment data and payment validation and (2) once payment is made then retrieving data and a “condition for accessing the data” from the supplier and send it to the carrier. The claim further points out that the condition is “dependent upon the amount of payment.”.
Patent No. 8,118,221 is fairly indicative and claims a data access terminal that is designed to take-in data from a supplier and provides the data to a carrier. That motion was first considered and rejected by Magistrate Judge Nicole Mitchell and then confirmed without opinion by Judge Rodney Gilstrap. In this case, Apple motioned for summary judgment of ineligibility under the Alice standard. If these claims are patent eligible, then Alice will ultimately have only a minor shift in the law.Īlthough there may be factual underpinnings, patent eligibility is generally thought to be a question of law that is decided by a judge rather than jury. (These issues will first arise in post-verdict motions before the district court). In the upcoming $500 million Apple v. Smartflash appeal, a central question will be whether the Smartflash patents properly claim eligible subject matter under 35 U.S.C.
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