Impromptu Comments on Software Patents During Oral Argument

If you practice in the software patent arena, you might find the following comments by Judge Moore of interest with respect to section 101 and 103 issues.

In Classen Immunotherapies v. Biogen-Idec, et al., 2006-1634 (Fed. Cir. Dec. 19, 2008), she commented about applying a mental process exception so broadly under 35 U.S.C. §101 that it would lead down a slippery slope to invalidate all software patents:  [Listen].  Classen was decided prior to the Supreme Court’s opinion in Bilski.

In In re Rackman, 2009-1217 (Fed. Cir. Nov. 4, 2009), she pushed back on the PTO’s assertion that it was obvious to combine references if they merely enhanced functionality of the underlying reference, as to do so would arguably make every software invention obvious: [Listen].

You can read the court’s opinions in Classen and Rackman [here] and [here], respectively.

You can listen to the entire oral arguments in Classen and Rackman [here] and [here], respectively.

She also made this comment in the en banc oral argument for Tivo v. Echostar: [Listen].

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