Software-Related Patent Eligibility: Where Do We Stand after CLS Bank?

Vol. 6 No. 2

By

James A. Gromada is an associate at Sughrue Mion, PLLC in Washington, D.C. He specializes in patent prosecution, opinion practice, and counseling, with emphasis on electrical and mechanical technologies. He can be reached at jgromada@sughrue.com. The views expressed herein are solely those of the author.

On May 10, 2013, the United States Court of Appeals for the Federal Circuit issued a one-paragraph decision in CLS Bank v. Alice Corp. The following is a reproduction of the per curiam opinion in its entirety:

Upon consideration en banc, a majority of the court affirms the district court’s holding that the asserted method1 and computer-readable media claims are not directed to eligible subject matter under 35 U.S.C. § 101. An equally divided court affirms the district court’s holding that the asserted system claims are not directed to eligible subject matter under that statute.2

Six separate opinions of much greater length accompany the en banc decision. However, in Chief Judge Rader’s concurring-in-part, dissenting-in-part opinion, an early footnote points out that “[n]o portion of any opinion issued today other than our Per Curiam Judgment garners a majority,” and therefore, “though much is published today discussing the proper approach to the patent eligibility inquiry, nothing said today beyond our judgment has the weight of precedent.”3

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