On June 3, 2016, the International Trade Commission (“Commission”) issued a notice of its decision not to review an Initial Determination (“ID”) granting summary determination that two asserted patents are directed to ineligible subject matter under 35 U.S.C. § 101 in Certain Activity Tracking Devices, Systems, and Components Thereof (Inv. No. 337-TA-963).

By way of background, this investigation is based on a July 8, 2015 complaint filed by AliphCom d/b/a Jawbone and BodyMedia, Inc. (collectively “Jawbone”) alleging violation of Section 337 in the importation into the U.S. and sale of certain wearable fitness and activity tracker devices, systems, and components thereof that infringe one or more claims of U.S. Patent Nos. 8,446,275; 8,529,811; 8,793,522; 8,961,413; 8,073,707; and 8,398,546. The complaint further alleged that the respondents have engaged in unfair competition and unfair acts by their access and improper use of Jawbone’s trade secret confidential information related to Jawbone’s technology and wearable product development plans, roadmaps, and financial information. See our July 8, 2015 and August 18, 2015 posts for more details on the complaint and Notice of Investigation, respectively.

In the underlying ID (Order No. 54), ALJ Dee Lord found that U.S. Patent Nos. 8,961,413 (“the ‘413 patent) and 8,073,707 (“the ‘707 patent”) were directed to ineligible subject matter under 35 U.S.C. § 101 and these patents were terminated from the investigation. In the ID, ALJ Lord applied the Supreme Court’s two-part test for determining eligible subject matter as set forth in Alice Corp. v. CLS Bank (2014). In the first step, “the court must decide whether a patent is drawn to an abstract idea,” and in the second step, the court “seeks to identify an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into patent-eligible subject matter.”

ALJ Lord applied the first step to the ‘413 patent, determining that using conventional electronic devices to obtain and manipulate an individual’s sleep-related data is an abstract idea, and that “[t]his type of information can be and has been collected and recorded by human minds and hands.” In proceeding to the second step, the ALJ found that “[n]one of the elements disclosed in the ‘413 patent is innovative or transformative,” and that the ‘413 patent simply combines conventional elements.

The ALJ’s analysis with respect to the ‘707 patent was similar, where she determined that collecting information about an individual’s health status and presenting information to the individual based on the data obtained is an abstract idea and nothing in the ‘707 patent described any technological advance, as it relies solely on conventional electronic devices.

In the June 3, 2016 notice, the Commission determined not to review ALJ Lord’s ID without elaboration.