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Are the Fed. Circuit’s Rule 36 Judgments Always a Bad Thing?

The Federal Circuit has been widely criticized for the practice, under its Rule 36, of affirming lower court and USPTO PTAB decisions without any opinion.  This post highlights two recent Rule 36 affirmances of holdings of patent-ineligibility under 35 U.S.C. § 101.  I should stress that I don’t disagree that the court generally owes its litigants an explanation of its decisions, and may even be bound to do so by statute. But I want to suggest that the two cases discussed below demonstrate that there are areas of patent law, even relating to applying the Mayo/Alice patent-eligibility test, whose contours are well-enough defined and do not need elucidation. The Federal Circuit’s Rule 36 provides as follows: Rule 36. Entry of Judgment – Judgment of Affirmance Without Opinion The court may enter a judgment of affirmance without opinion, citing this rule, when it determines that any of the following conditions exist…

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Creating “Member” Webpages Held Not Patent-Eligible

Patent claims directed to allowing “Internet users to communicate with members of a group” via “designated webpages” are not patent-eligible under 35 USC § 101, said the court in EveryMD.com LLC v. Facebook Inc., No. CV 16-06473-AB (JEMx) (N.D. Cal. May 10, 2017).  Thus, the court granted the defendant’s motion for judgment on the pleadings under FRCP 12(c), dismissing a complaint for infringement of U.S. Patent Nos. 9,137,192 and 8,504,631. The plaintiff’s own description of the claimed invention probably put the writing on the wall with respect to patent-eligibility: this invention could serve groups of healthcare professionals by providing a searchable website through which potential patients, or “users” as described in the specification, could locate and communicate with doctors, or “recipients,” even if the professional is not active on the Internet. That is, a doctor not active on the Internet could nonetheless have his or her own “homepage” with contact…

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