A Fractured Federal Circuit Creates More Questions Than Answers: CLS Bank Int’l v. Alice Corp., No. 2011-1301

On Friday, the U.S. Court of Appeals for the Federal Circuit issued its en banc decision in CLS Bank Int’l v. Alice Corp. The decision includes seven separate opinions spanning 135 pages, but the only precedential portion appears to be the one-page per curiam opinion affirming the district court’s holding that the asserted method, computer-readable medium, and system claims are not directed to eligible subject matter under 35 U.S.C. § 101.

Although none of the seven issued opinions commands a majority, seven out of ten members1 of the en banc court concluded that the asserted method and computer-readable medium claims are patent-ineligible under § 101, and five of those seven members also concluded that the system claims are patent-ineligible. Further adding to the confusion, the non-precedential opinions create three different tests for evaluating patent eligibility under § 101.

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