The US Court of Appeals for the Federal Circuit affirmed a district court’s determination that claims directed to an “attention manager” display screen, but not limited to any system components for producing the claimed result, were not directed to patent eligible subject matter under 35 USC § 101. Interval Licensing LLC v. AOL, Inc., Apple, Inc., Google LLC, Yahoo!, Inc., Case Nos. 16-2502, -2505, -2506, -2507 (Fed. Cir. July 20, 2018) (Chen, J) (Plager, J, concurring in part, dissenting in part).
The district court invalidated Interval Licensing’s patent in an action brought for infringement against multiple parties. The parties agreed that the claims at issue were directed to the operation of an attention manager display screen but disagreed whether the claimed attention manager was a patent-ineligible abstract idea. Given the broad construction of the attention manager as recited in the claims, the district court found that the claims were directed to a system for presenting two non-overlapping sets of data but were not limited to any components for producing the claimed result, and granted summary judgment on the pleadings. The district court concluded that the claims were directed to an abstract idea of “providing information to a person without interfering with the person’s primary activity” but lacked a claimed inventive concept for implementing the abstract idea, noting that the claims did not recite how the attention manager solved the proposed problem arising in windowed operating systems. Interval appealed.
The Federal Circuit agreed that neither the specification nor the claims offered any clues on how the attention manager met the proposed construction; i.e., how the attention manager managed the display of acquired content in a manner that avoided overlapping with already displayed content with which the user was actively engaged. The majority followed recent § 101 Alice step one and step two analysis cases, finding that under step one, the act of providing someone with an additional set of information without disrupting the ongoing provision of an initial set of information is an abstract idea, and that the claimed instructions did not impose meaningful limitations on the purported solution of an attention manager that would improve a computer as a tool. Instead of claiming a solution that produced the claimed result, the claims in effect encompassed all solutions.
In its step two analysis, the Federal Circuit ticked down the list of recent decisions, finding, in part, that the recited instructions were at a high level of generality and were conventional, were not rooted in computer technology, and were without any specific distributed architecture. Using a conventional, pre-existing practice of acquiring information that will then be displayed somewhere (and somehow) adjacent to other information is not enough.
Judge Plager concurred in finding the claims patent ineligible based on the current state of the law, but dissented from the Federal Circuit’s “continued application of this incoherent body of doctrine.” Plager stated that exclusionary standards require concise guidance and equated determining when a claim is directed to an abstract idea with obtaining cultural consensus as to what qualifies as “obscenity.” Plager then questioned when a claim, reasonably determined to be abstract in a step one analysis, could then be determined to have become un-abstract in step two.
In Plager’s view, the “state of the law is such as to give little confidence that [any] outcome is necessarily correct.” The dissent complained that § 101 defenses are too often seen as a shortcut to quick dismissal, and courts are left with the task of attempting to resolve the criteria for patent eligibility. He suggested that courts consider deferring resolution of an “abstract idea” § 101 defense until validity is addressed under §§ 102, 103 and 112, at least until the issues can be addressed legislatively.