Abstract Idea

The oral argument of Digitech Information Systems v. BWM Auto Leasing will interest some readers.  The patentee appealed a summary judgment of invalidity under 35 U.S.C. §101.  Much of the oral argument focused on what was the definition of an abstract idea.

I thought this oral argument was notable for several reasons.  For one, Chief Judge Rader seemed to be less focused on trying to determine patent eligibility based on the “subject matter” of the specification rather than the claims.  Chief Judge Rader focused most of his questioning on trying to elicit a definition of “abstract idea”  from appellee’s counsel.  That led to this humorous moment when the fire alarm went off during the oral argument: [Listen].  Judge Dee Benson, sitting by designation, joked that the alarm was an abstract idea, while Chief Judge Rader jokingly cast suspicion on appellee’s counsel for triggering the alarm in an attempt to avoid providing a definition of an “abstract idea.”

Judge Moore again championed software patents during the oral argument.  She inquired if claims can be distilled down to a series of steps by discounting structure and other meaningful limitations, then doesn’t every software patent distill down to an algorithm.  Chief Judge Rader followed that comment with observations about the software economy that we live in: [Listen].  Their points are well-taken.  One only hopes the Supreme Court will some day recognize that we no longer live in an age dominated by combines, reapers, and other mechanical inventions.  We live in the information age and need to provide innovators the ability to protect their inventions.

Given the makeup of the panel and the tenor of the oral argument, I was a little bit surprised that the panel not only affirmed the district court but also issued a Rule 36 Judgment.  You can listen to the entire oral argument here:  [Listen].

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