New patent infringement lawsuits fill the dockets every morning. The asserted patents are often directed to a process involving financial services or products, electronic commerce or monetary matters. The patents may implement these processes using traditional forms of computer, memory or networking technology, well-known hardware or software components, or other solutions that address business problems instead of technical problems. These patents are commonly referred to as business method patents. Too often, defendants in these lawsuits only consider two strategies: unfavorable settlements and protracted litigation.
The America Invents Act gives defendants a third option. It created a proceeding known as covered business method review that allows defendants to attack the patentability of business method patents with the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office. Unlike in the more frequently used inter partes review proceeding, a petitioner in a CBM proceeding can attack the “unpatentable subject matter” of a business method patent pursuant to 35 U.S.C. §101. Below, we discuss how an early Section 101 challenge in a CBM proceeding may help defendants turn the tables in patent litigation. With CBM, defendants now have a chance to play offense.
Originally published in Law360 on June 27, 2014.
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