Another patentable-subject-matter take down by the Electric Power Group (EPG) line of cases!

In yesterday’s In re McFadden Fed. Cir. case (nonprecedential), the court struck down an application directed to “generating one distribution of information items, then comparing it to a previous distribution of information items, to determine how information should be presented to a consumer.” If Mr. McFadden’s name sounds familiar, it’s because he had another one of his applications before the Fed. Cir. in September where he argued (yes, he appeared pro se just like he did in yesterday’s case) for a means-plus-function analysis of his claims to save them from death via 35 U.S.C. § 101. He won a remand to the Board for an analysis of Alice step two.

In yesterday’s case, he was not so fortunate. Interestingly, two claim elements were means-plus-function elements (“means for generating” and “means for computing”). Regardless, the court had a very easy time striking down the claim. At Alice’s step one, the court stated, “[w]e therefore agree with the Board that the claim is directed to ‘advertising, sales, and marketing activity,’ or at least the close corollary of packaging and presenting information, which is an abstract idea covering ‘[c]ertain methods of organizing human activity.'” Then, the court cited to Mobile Acuity (an EPG case) for the proposition that “claims reciting generalized steps of collecting, analyzing, and presenting information, using nothing other than the conventional operations of generic computer components are directed to abstract ideas.”

At Alice’s step two, the court held that “[t]he claim amounts to simply inputting information into a generic computer and running computations and transformations based on that information, which the Supreme Court and this court have been clear is insufficient to supply an inventive concept.”

So, what’s so important about this case? Well, for starters, it again shows that EPG is the Federal Circuit’s weapon of choice for striking down patent claims for lack of patentable subject matter. It also shows the convergence between three abstract idea categories: (1) mental steps/organizing human activity; (2) business methods; and (3) EPG’s collecting information, analyzing information, and displaying information. In other words, EPG is used to strike down all three categories. For example, the Trading Tech business method patents were struck down using EPG.