A new hope for inventors?

The Federal Circuit's recent opinion in Trading Technologies International, Inc. v. CQG, Inc., could be part of a broader trend signaling a liberalization of subject matter eligibility. As I wrote in an advisory with my colleague Doug Gastright, in that case, the Federal Circuit affirmed the lower court’s decision that the asserted patent claims, which covered a software invention relating to improved graphical user interfaces for electronic stock trading, were patent eligible subject matter. In handing down this opinion, the Federal Circuit designated it as being non-precedential, which is usually done when a decision “does not add significantly to the body of law.” However, notwithstanding the designation of this case as non-precedential, it should still be seen as noteworthy as it indicates that that the Federal Circuit may be coalescing around a relatively inventor-friendly approach to determining subject matter eligibility.

The change in approach which this case represents can be seen by contrasting it with the Federal Circuit’s initial opinions applying the Supreme Court’s decision in Alice v. CLS Bank to software inventions. In those early decisions, the Federal Circuit almost seemed poised to adopt a per-se rule that software-implemented inventions which solved business problems were not patent eligible. However, Trading Technologies not only made clear that there was no such per-se rule, it also demonstrated that an invention which solves a problem specific to a particular computer-enabled business context could be patent eligible even if it didn’t include any further inventive concept to limit the scope of its claims. This result was consistent with, and built on, several recent Federal Circuit cases dealing with software-implemented inventions, including Enfish LLC v. Microsoft Corp., which established that a software invention could be patent eligible even if didn’t include any additional hardware-based inventive concept, and Bascom Global Internet Services, Inc. v. AT&T Mobility LLC, which made clear that an invention which solved a business problem could be patent eligible if it was claimed in a manner which included an additional inventive concept. Accordingly, while non-precedential, the decision in Trading Technologies could be very useful as an inventor-friendly demonstration of how the Federal Circuit’s precedential decisions (e.g., Enfish and Bascom) should be applied.

The advisory I co-authored with Doug Gastright, which includes links to, and supporting citations from, the cases referred to above, is available here.