In CG Technology Development, LLC, et al. v. BWIN.Party, Inc. et al., (Case No. 2:16-cv-00871-RCJ-VCF, D. Nev. 2016), the patents-in-suit relate to online gambling on a mobile device. Defendant BWIN.Party filed a motion to dismiss based on patent ineligibility under 35 U.S.C. 101. After considering all the evidence by both parties, the Court denied the motion to dismiss and upheld validity of all the patents-in-suit as being directed to patent-eligible subject matter.

The Court found that multiple steps of the claims are directed to an abstract idea, but the claims also recite an additional limitation "that is concrete enough to take the claim outside the scope of Alice Corp.'s `abstract idea' exception to patentability under 101." For example, the Court stated, "Claim 19 requires the location of a mobile gaming device via the computer system." The independent claims of the other patents-in-suit all include steps requiring the physical location of the mobile device via the computer to determine the game configuration. The Court reiterated that this step makes the claims sufficiently concrete to survive the abstract idea test under Alice Corp.

Takeaway:

Incorporating a non-abstract step in an otherwise abstract invention may be sufficient to overcome Step 1 of the Alice framework. As long as the claim does not monopolize purely abstract concepts or all of their applications, the claim may pass muster under patent eligibility scrutiny in view of Alice and other more recent District Court opinions.