DDR and Enfish Can’t Save Software Fault Recovery Claims

Claims directed to “software fault recovery” are patent-ineligible under 35 U.S.C § 101, said the court in Atticus Research Corp. v. MMSoft Design Ltd.No. 4:17-CV-3387 (S.D. Texas Sept. 6, 2018), granting a Rule 12(b)(6) motion to dismiss allegations that claims of U.S. Patent No. 6,567,937 were infringed.  The court agreed with the defendant that the claims were directed to the unpatentable abstract idea, under the Alice/Mayo test, of taking a corrective default action if a remote user does not specify otherwise within a period of time.

Claim 16 of the ’937 patent recites:

16. A program storage device, readable by a computer processor, comprising:

instructions stored on the program storage device for causing the computer processor to

determine a state of a process executing on the computer processor;

transmit a first signal to a remote device if the process is in a first state indicative of a fault condition;

initiate a first software fault recovery action to correct the fault condition in accordance with a second signal, the second signal received in response to the first signal; and

initiate a second software fault recovery action if the second signal is not received within a specified time period.

Under part one of the patent-eligibility test, whether there is an abstract idea, the court considered Enfish, LLC v. Microsoft Corp. (data structure was patent-eligible because it improved operation of a computer) and FairWarning IP, LLC v. Iatric Systems, Inc. (“detecting improper access of a patient’s protected health information (PHI) in a computer environment” was not patent-eligible). The above claim was more like FairWarning becausethere was no innovation beyond concepts similar to keeping watch on a military base, or a security company trying to receive a response from a home owner before raising an alarm.  The claimed process was thus similar to the unpatentable fraud detection process of FairWarning.

Further, there was no saving inventive concept under part two of the patent-eligibility test.  The plaintiff tried to rely on  DDR Holdings, LLC v. Hotels.com, L.P. (claims to displaying merchant web pages were “necessarily rooted in computer technology” and therefore patent-eligible).  But DDRwas distinguishable because the claims here simply applied generic technology, rather than inventing new technology.

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