CLS Bank v Alice Corporation: what is patentable?
Perhaps I was too optimistic in my earlier “Prometheus bound (or at least distinguished)” post.
The May 10 2013 Federal Circuit court decision, “CLS Bank v Alice Corporation” shows what precipitated the Alice shitstorm.
Interest in this decision was very high. Indeed, the Federal Circuit Court servers crashed under the load of everyone trying to download the decision at once!
You can see this monument to 2013 era legal confusion at:
https://www.eff.org/files/cls_bank_v_alice_en_banc_ruling.pdf
Dialing the legal insanity up to eleven
Note added in 2020: An alternate title for this article could have been “the insanity begins”. However the insanity actually started a bit earlier with the earlier Mayo v Prometheus case. Then the Federal Circuit dialed the insanity “up to eleven!”
The original 2012 dissenting opinion by Judge Moore and others shows concern that things were going “off the rails”. This dissenting opinion was prophetic. It sums up almost everything wrong that has happened since then.
Here is what the Judges wrote in 2012 (see page 88 in the above file):
“I am concerned that the current interpretation of § 101, and in particular the abstract idea exception, is causing a free fall in the patent system. The Supreme Court has taken a number of our recent decisions and, in each instance, concluded that the claims at issue were not patent-eligible. See Bilski, Prometheus, Myriad (under consideration)…
Holding that all of these claims are directed to no more than an abstract idea gives staggering breadth to what is meant to be a narrow judicial exception…
My colleagues erroneously apply Prometheus’s “inventive concept” language by stripping away all known elements from the asserted system claims and analyzing only whether what remains, as opposed to the claim as a whole, is an abstract idea…This approach is inconsistent with the 1952 Patent Act, and years of Supreme Court, CCPA, and Federal Circuit precedent that abolished the “heart of the invention” analysis for patentability…
Moreover, my colleagues’ analysis imbues the § 101 inquiry with a time-dependency that is more appropriately the province of §§ 102 and 103… Under my colleagues’ approach, however, a system claim that passes § 101 when the patent issues could later magically transform into an abstract idea simply because certain computer hardware elements no longer seem inventive.”
So these judges, writing in 2012, analyzed the problem with total clarity and foresaw exactly what would happen. Too bad the Supreme Court apparently ignored this opinion!
With the passage of time, this dissenting opinion has sometimes formed other majority opinions, but only in the Federal Circuit. See the later Enfish, Bascom, Rapid Litigation, Mcro, Thales, and 2019 PEG. Unfortunately, the Federal Circuit does not have enough legal clout to overturn a SCOTUS decision. They can only “clarify.” SCOTUS, the source of the problem, continues to refuse to revisit this issue.