The Federal Circuit Delivers a Short But Blistering § 101 Smackdown!

In yesterday’s In re Wenkman (nonprecedential), the Federal Circuit struck down a computer-implemented bartering application, affirming the PTAB’s finding that the claims were unpatentable under 35 U.S.C. § 101. The application is so obviously lacking patent eligibility that I will not include this case in my webinars. But, for those of you who follow my analyses of every § 101 case, this summary is for you. 

The specification describes “a business bartering groceries and other goods to a customer in exchange for silver or gold.” It explains that it is not the physical devices that are patentable, “but rather the computer-implemented process (aka: method) and ‘inventive concept’ (aka: ‘significantly more’) produced by a special computer program implemented on a computer to perform the cited inventive method.”  Beyond that, “[t]here is no further description of the ‘special computer program.’”  The Board therefore affirmed the Examiner’s § 101 rejection and added a lack-of-written-description rejection under § 112(a).  The Federal Circuit found the claims so clearly directed to ineligible subject matter that it did not reach the written-description issue. 

At step one, the court agreed with the Board that “the claim is directed to the abstract idea of organizing human activity in the context of a fundamental economic practice (bartering).”  At step two, the court simply noted that the “claim elements invoke the use of a generic computer and electronically-activated card (or mobile device or tablet) to perform basic computer functions….”