In Blue Calypso, LLC v. Groupon, Inc., Appeal Nos. 2015-1391, -1393, -1394, the Federal Circuit upheld the PTAB’s decision to institute covered business method (“CBM”) review. The Federal Circuit also upheld the PTAB’s finding that Groupon had failed to establish that a report, published on a webpage by a college graduate student (“Ratsimor”), was sufficiently publicly available to qualify as prior art.
When the PTAB instituted review of the patents, it noted that each patent included a “subsidy” or “incentive” claim term. Both terms were construed to refer to a system of providing financial assistance that was essential to practicing the steps of the claimed method. Based on this interpretation, the PTAB found that each patent claim constituted a “business method” within the meaning of the statute. On appeal, Blue Calypso argued that the claims did not cover business methods and were ineligible for CBM review because they fit within the “technological inventions” exclusion under the AIA. In affirming the PTAB’s institution of CBM review, the Federal Circuit upheld the PTAB’s broad business methods definition and found that the “technological inventions” exclusion was inapplicable because the claims merely recited general and conventional computer hardware.
Groupon also cross-appealed the PTAB’s finding that the Ratsimor reference was not publicly available prior art. The Ratsimor reference was a report co-authored by a graduate student along with Groupon’s technical expert. The report was made available on the student’s website and Groupon’s expert testified that it was available before the critical date of the applicable patent. In upholding the PTAB’s finding that Groupon had not established that the report was publicly available, the Federal Circuit noted that Groupon had not provided evidence that an ordinarily skilled artisan would have known about, or been able to find, the graduate student’s website. The Federal Circuit emphasized that there was no evidence that the website had been indexed by a search engine, or that the Ratsimor reference had ever been accessed or downloaded.