If you want an example of the kind of patent-eligibility question that is now easy to resolve under the Alice abstract idea test, look to the Federal Circuit’s non-precedential decision in Move, Inc. v. Real Estate Alliance, No. 2017-1463 (Fed. Cir. Feb. 1, 2018) (opinion by Judge Stoll, joined by Judges Lourie and Wallach). In this case, the court affirmed a lower court’s summary judgment of invalidity under 35 USC § 101 of claims of two patents directed to computerized methods for locating available real estate, i.e., property for purchase.
Perhaps the most striking thing about these two patents, each entitled “Real Estate Search and Location System and Method,” is their age. US 4,870,576 issued in September 1989 from an application filed in March 1986. US 5,032,989, a continuation-in-part of the ’576 patent, issued in July 1991 from an application filed in April 1989. Unsurprisingly, then, the present appeal stemmed from “decades-long litigation.”
The conclusion of patent-ineligibility is fairly unsurprising just from looking at claim 1 of the ’989 patent:
A method using a computer for locating available real estate properties comprising the steps of:
a) creating a database of the available real estate properties;
b) displaying a map of a desired geographic area;
c) selecting a first area having boundaries within the geographic area;
d) zooming in on the first area of the displayed map to about the boundaries of the first area to display a higher level of detail than the displayed map;
e) displaying the zoomed first area;
f) selecting a second area having boundaries within the zoomed first area;
g) displaying the second area and a plurality of points within the second area, each point representing the appropriate geographic location of an available real estate property; and
h) identifying available real estate properties within the database which are located within the second area.
The purported improvement recited in this claim was the “zoom feature” that allowed users to see map boundaries not just in magnification, but in greater detail, with an area of interest “cross-referenced with the database of available properties whose approximate locations are then pictorially displayed.”
Unsurprisingly, the Federal Circuit, agreeing with the district court, found this claim to be directed to an abstract idea, specifically, “a method for collecting and organizing information about available real estate properties in displaying this information on a digital map that can be manipulated by the user.” The cited precedent is probably pretty familiar by now: Electric Power Group, LLC v. Alstom S.A. (Fed. Cir. 2016) (claims directed to “real-time performance monitoring of an electric power grid” held patent-ineligible); Intellectual Ventures I LLC v. Capital One Financial Corp. (Fed. Cir. 2017) (manipulating XML documents held patent-ineligible). And Enfish, LLC v. Microsoft Corp. (Fed. Cir. 2016) (claims to novel data structure were patent-eligible because they improved computing efficiency), could not save the day. The claim here was directed to “searching for real estate using a computer,” and not to “a technological improvement.”
The patent owner tried to argue, under step two of the Alice test, “that the claimed zoom feature supplies the inventive concept.” This argument, supported only by an “expert’s conclusory declaration” that the zoom feature was new, was not enough to “satisfy the inventive concept requirement.”
Of less interest to this post, but worth noting, is that the court also addressed the question of whether the patent owner conceded, by representations made in a Joint Status Report at the end of litigation, that the ’576 patent fell with the ’989 patent. The Federal Circuit agreed that the district court had properly invalidated the ’576 patent based on the Section 101 invalidity of the ’989 patent.
Lessons for Practice
For all the complaining that people like me do about the seeming murkiness and subjectivity of patent-eligibility law since Alice, there are easy patent-eligibility cases these days.