Challenging Business Method Patents

The America Invents Act (AIA) created a new special transitional procedure for challenging business method patents, which are apparently considered to be more suspect than other patents. The procedure is called the Covered Business Method review procedure.

An issued business method patent, that has gone through a complete review by the U.S. Patent and Trademark Office and that has been allowed by an examiner, and litigated in court, can be reviewed again by the Patent Trial and Appeal Board (Board) of the U.S. Patent and Trademark Office under this procedure if it is a covered business method patent.

Only a person who is sued or charged with infringement of a covered business method patent may petition for a covered business method review of the patent.

Such a person can petition for review of a covered business method patent. A covered business patent is a patent that claims a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service, except that the term does not include patents for technological inventions. The AIA does not specify what a patent for a technological invention covers.

According to the U.S. Patent and Trademark Office, the Office will consider the legislative intent and history behind the public law definition and the transitional program itself to interpret whether a business method patent covers a “financial product or service.” For example, the legislative history explains that the definition of covered business method patent was drafted to encompass patents “claiming activities that are financial in nature, incidental to a financial activity or complementary to a financial activity.” This remark tends to support the notion that “financial product or service” should be interpreted broadly.

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