Before the case arrived at the U.S. Court of Appeals for the Federal Circuit, Twitter secured summary judgment on grounds that the subject matter of the asserted claims was ineligible for patenting under 35 U.S.C. § 101. The District Court also granted summary judgment because it held Twitter did not infringe the claims. EasyWeb’s asserted claims generally involved using a processor to analyze a message sent from a user in a first format, authenticate the user based on the first format, convert the message into a second format, and publish the message in the second format only if the user had been authenticated.
The decision has been designated nonprecedential, and the Court expended little effort to conclude that the claims were directed to an ineligible abstract idea. First, the Court held that the claims were directed to “receiving, authenticating, and publishing data.” Unlike the decisions in Enfish, McRO, Amdocs, and Thales Visionix, in which the Court wrestled with how to construe the claims and took a careful look at what they required, the Court maintained its analysis during this first step at a high level of abstraction from the actual claim language. Such an analytical framework is problematic because the Court has recognized that “there is considerable overlap between step one and step two[1],” and painting the claims with a broad brush at this stage is essentially outcome-determinative.
Distinguishing the claims found patent-eligible in McRO, the Court stated that the reason EasyWeb’s claims were ineligible for patenting was that they did “not recite an improvement to a particular computer technology.” This statement does not reflect what the court actually did in McRO. As another panel of the Court has recognized, the reason that the claims in McRO were patent-eligible was because they automated a process that had previously been done manually using specific rules.[2] Although EasyWeb’s rules were perhaps less specific because they did not say what it was about the first format that enabled user authentication or what is was about the second format that rendered the message suitable for publishing, the claims here employed rules to automate a technological process in a manner similar to the claims in McRO.
The Court did not take a closer look at the claim language during the second stage of the inquiry. The Court dismissed the computer hardware required to implement the claims as generic. The Court then characterized the steps required by the claims as “most basic” and arranged “in the ordinary order.” However, the Court did not give any evidence or reasoning to support its conclusions.
Thankfully, designating this opinion as nonprecedential may reduce the likelihood that the analytical framework employed by the panel will be followed by other panels and the lower courts. As this area of the law continues to evolve, however, all the stakeholders in the patent system deserve better reasoning and more clarity on when a claim is impermissibly abstract, and when it is sufficiently concrete.
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[1] Amdocs Isr. v. Openet Telecom, 841 F.3d 1288, 1300–02 (Fed. Cir. 2016)
[2] McRO, Inc. v. Bandai Namco Games Am., 837 F.3d 1299, 1316 (Fed. Cir. 2016); FairWarning IP v. Iatric Sys., 839 F.3d 1089, 1094 (Fed. Cir. 2016) (“[T]he claimed rules in McRO transformed a traditionally subjective process performed by human artists into a mathematically automated process executed on computers.”)