The Federal Circuit has again addressed which types of patents are eligible for Covered Business Method (“CBM”) review before the Patent Trial & Appeals Board. Approximately one week after issuing the recent Unwired Planet v. Google decision clarifying the proper standard to determine whether a patent is a CBM patent, the Federal Circuit issued a decision in Ameranth, Inc. v. Agilsys, Inc., which demonstrates the great deal of deference the Federal Circuit may give the Board in determining what constitutes a CBM patent.
A threshold issue for CBM review is whether the challenged patent is a CBM patent and thus eligible for CBM review. As the Federal Circuit explained last week, a CBM patent is statutorily defined as “a patent that claims a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service, except that the term does not include patents for technological inventions.” To fall within the “technological inventions” exception to CBM patents under 37 C.F.R. §42.301(b), the claimed subjected matter as a whole must satisfy two requirements: (1) it must recite a technological feature that is novel and unobvious over the prior art; and (2) it must solve a technical problem using a technical solution.