Patentability of Software Method and System Claims Post-CLS Bank
By ROBERT M. MASTERS, TIMOTHY P. CREMEN, BOB B. CHEN, & LISA Y. LEUNG
On May 10, 2013, a deeply divided en banc panel of the United States Court of Appeals for the Federal Circuit affirmed a District Court’s grant of summary judgment of invalidity, holding that system and method claims directed towards a computer trading platform for eliminating settlement risk were patent ineligible under 35 U.S.C. §101. CLS Bank International, CLS Services Ltd. v. Alice Corporation Pty Ltd., 2011-1301 (Fed. Cir. May 10, 2013). However, the decision did little, if anything, to clarify what is an abstract matter or how to make that determination. As Judge Rader observed, no portion of the opinion other than its per curiam judgment garnered a majority, and nothing beyond the judgment itself has the weight of precedent. As such, the Federal Circuit opinion does not provide definitive guidance as to how to assess the patentability of software method and system claims.