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Federal Circuit Rehearing Could Redefine Patent Law

October 10, 2012

Robert Sachs, a partner in Fenwick’s Intellectual Property Group, was quoted in a Daily Journal article titled "Federal Circuit Rehearing Could Redefine Patent Law."

The United States Court of Appeals for the Federal Circuit has agreed to hear en banc the case of CLS Bank International v. Alice Corporation Pty. Ltd., once again considering the question of whether business methods are patentable.

In this case, the court will consider whether a company’s data processing patents are patent-eligible, or if a computer-implemented invention is a patent ineligible “abstract idea.” While the Supreme Court did consider the same issues in Bilski v. Kappos, that ruling did not resolve the long-running debate surrounding patented business methods tied to a machine or those that caused a physical transformation.

Sachs says that many attorneys feel that software is a language and is therefore abstract. While several recent court cases have reinvigorated the discussion, they have failed to advance it, he says.

“Overall, I’d say no progress has been made,” Sachs continued.

Sachs also predicts that the debate will not end with this case. “It will certainly be a divided court.  I don’t think they’re going to come up with any formal way to test an abstract idea,” he said.