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The question of patent-eligible subject matter became particularly relevant to Supplemental Examinations after the Supreme Court decided Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014). Alice altered the standard for patent accommodation under 35 U.S.C. § 101 by ruling that abstruse ideas implemented on generic computers are not patent-eligible subject matter. Since Alice, the courts, the USPTO, and patent owners accept struggled to discern what constitutes patent-eligible subject matter. This article explores how one patent owner responded to this uncertainty with Supplemental Examination and considers whether the patent owner could accept chosen other options.
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In Supplemental Examination No. 96/000,128, patent owner Exceleron Software, Inc. (“Exceleron”) filed a Request for Supplemental Examination of U.S. Patent No. 8,095,475 (“the ’475 patent”). The ’475 patent issued prior to Alice and included 34 claims directed to utility billing software allowing customers to manage their utility accounts and prepay for utility services.
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Perhaps sensing the precarious future of its patent, Exceleron took a proactive approach. It filed a Request for Supplemental Examination to review all 34 claims under § 101 in light of Alice. In its Request, Exceleron described in detail how the claims could be construed as abstract. Exceleron likely submitted this information to comply with its obligations under 37 C.F.R. § 1.610(b)(5). That paragraph requires Requests to include an explanation of the “relevance and manner of applying each item of information to each claim of the patent for which supplemental examination is requested.” 37 C.F.R. § 1.610(b)(5).
Before Alice, applicants commonly received patents on software claims like those in the ’475 patent. Once Alice changed the landscape for software patents, however, the enforceability of software claims running on generic computers became uncertain.
Background: Among its myriad changes to U.S. patent law, the America Invents Act created Supplemental Examination as a new action for patent owners to accept the Patent Office consider, reconsider, or correct information in their patents. Patentees may request Supplemental Examination for a variety of reasons, as the statute authorizes requests based on “information believed to be relevant to the patent.” 35 U.S.C. § 257(a) (2012) (emphasis added). In response to a Request for Supplemental Examination, an examiner considers whether the Request raises a substantial new question of patentability (“SNQ”). If so, the examiner orders an ex parte reexamination of the patent. 35 U.S.C. § 257(a)-(b). Anything considered during Supplemental Examination “shall not be” the basis for later holding the patent unenforceable. 35 U.S.C. § 257(c). A detailed discussion of Supplemental Examination may be found at Nyshadham et al, “Supplemental Examination Nuts and Bolts: Get it in Your Toolbox and Don’t Leave Home Without It,” AIA blog column June 3, 2019, https://www.finnegan.com/en/insights/blogs/america-invents-act/aia-supplemental-examination-nuts-and-bolts-get-it-in-your-toolbox-and-dont-leave-home-without-it.html.