WOW! Follow the timeline. Look at how the process
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Posted On: 11/29/2018 1:40:06 PM
WOW! Follow the timeline. Look at how the process mirrors SFOR's case:
In the district court, the parties focused their arguments on claim 1 of the ’941 patent. We therefore discuss only that claim. It reads as follows:
1. A method of restricting software operation within a license for use with a computer including an erasable, non-volatile memory area of a BIOS of the computer, and a volatile memory area; the method comprising the steps of: selecting a program residing in the volatile memory, using an agent to set up a verification structure in the erasable, non-volatile memory of the BIOS, the verification structure accommodating data that includes at least one license record,verifying the program using at least the verification structure from the erasable non-volatile memory of the BIOS, and acting on the program according to the verification. On December 15, 2016, Ancora filed this action in the Western District of Washington, alleging that HTC has infringed and is infringing the ’941 patent. In April 2017, HTC moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. HTC argued that the subject matter of the claims of the patent is ineligible for patenting under 35 U.S.C. § 101. In May 2017, HTC filed with the Patent Trial and Appeal Board a petition to institute a review of the ’941 patent , on § 101 and other grounds, under the provision for review of Covered Business Method patents set forth in Section 18 of the Leahy-Smith America Invents Act, Section 18(d)(1) excludes patents “for technological inventions” from such review. An implementing regulation calls for consideration of “whether the claimed subject matter as a whole recites a technological feature that is novel and unobvious over the prior art; and solves a technical problem using a technical solution.” 37 C.F.R. § 42.301(b). On December 1, 2017, the (PTAB) Board rejected the request to institute a review, concluding that the ’941 patent claims a technical solution to a technical problem and comes within the “technological inventions” exception for such reviews.
On December 14, 2017, the district court granted HTC’s motion to dismiss (on grounds of 35 U.S.C. § 101).
At the first step, because “the claims at issue are directed toward computer-related technology,” the court asked “whether the focus of the claims is on the specific asserted improvement in computer capabilities or, instead, on a process that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool.” The court stated that the patent claims are “not focused on how usage of the BIOS to store the verification structure leads to an improvement in computer security” and that “the erasable, non-volatile memory of the BIOS . . . is typically used to store data.”
The (district) court concluded that the claims’ “focus is on the abstract concept of selecting a program, verifying whether the program is licensed, and acting on the program according to the verification.” Proceeding then to step two of the Alice framework, the district court concluded that the claims contained no “inventive concept” that makes their subject matter something significantly more than the abstract idea: in particular, “specifying that the BIOS be used to house the verification structure” calls for nothing more than “storing data in the memory of a computer component that generally stores data.” The district court issued its final judgment on December 20, 2017. Ancora timely filed a notice of appeal on December 29, 2017.
We conclude that claim 1 of the ’941 patent is not directed to an abstract idea. Improving security—here, against a computer’s unauthorized use of a program—can be a non-abstract computer-functionality improvement if done by a specific technique that departs from earlier approaches to solve a specific computer problem. The claimed method here specifically identifies how that functionality improvement is effectuated in an assertedly unexpected way: a structure containing a license record is stored in a particular, modifiable, non-volatile portion of the computer’s BIOS, and the structure in that memory location is used for verification by interacting with the distinct computer memory that contains the program to be verified. In this way, the claim addresses a technological problem with computers: vulnerability of license-authorization software to hacking. It does so by relying on specific and unique characteristics of certain aspects of the BIOS that the patent asserts, and we lack any basis for disputing, were not previously used in the way now claimed, and the result is a beneficial reduction of the risk of hacking.
In short, claim 1 of the ’941 patent is directed to a solution to a computer-functionality problem: an improvement in computer functionality that has “the specificity required to transform a claim from one claiming only a result to one claiming a way of achieving it.”
For the foregoing reasons, we reverse the judgment of the district court and remand the case. Costs to Ancora. REVERSED AND REMANDED.
That word 'REVERSED' in the next couple of weeks will mean hundreds of millions of dollars for Strikeforce in my opinion...
In the district court, the parties focused their arguments on claim 1 of the ’941 patent. We therefore discuss only that claim. It reads as follows:
1. A method of restricting software operation within a license for use with a computer including an erasable, non-volatile memory area of a BIOS of the computer, and a volatile memory area; the method comprising the steps of: selecting a program residing in the volatile memory, using an agent to set up a verification structure in the erasable, non-volatile memory of the BIOS, the verification structure accommodating data that includes at least one license record,verifying the program using at least the verification structure from the erasable non-volatile memory of the BIOS, and acting on the program according to the verification. On December 15, 2016, Ancora filed this action in the Western District of Washington, alleging that HTC has infringed and is infringing the ’941 patent. In April 2017, HTC moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. HTC argued that the subject matter of the claims of the patent is ineligible for patenting under 35 U.S.C. § 101. In May 2017, HTC filed with the Patent Trial and Appeal Board a petition to institute a review of the ’941 patent , on § 101 and other grounds, under the provision for review of Covered Business Method patents set forth in Section 18 of the Leahy-Smith America Invents Act, Section 18(d)(1) excludes patents “for technological inventions” from such review. An implementing regulation calls for consideration of “whether the claimed subject matter as a whole recites a technological feature that is novel and unobvious over the prior art; and solves a technical problem using a technical solution.” 37 C.F.R. § 42.301(b). On December 1, 2017, the (PTAB) Board rejected the request to institute a review, concluding that the ’941 patent claims a technical solution to a technical problem and comes within the “technological inventions” exception for such reviews.
On December 14, 2017, the district court granted HTC’s motion to dismiss (on grounds of 35 U.S.C. § 101).
At the first step, because “the claims at issue are directed toward computer-related technology,” the court asked “whether the focus of the claims is on the specific asserted improvement in computer capabilities or, instead, on a process that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool.” The court stated that the patent claims are “not focused on how usage of the BIOS to store the verification structure leads to an improvement in computer security” and that “the erasable, non-volatile memory of the BIOS . . . is typically used to store data.”
The (district) court concluded that the claims’ “focus is on the abstract concept of selecting a program, verifying whether the program is licensed, and acting on the program according to the verification.” Proceeding then to step two of the Alice framework, the district court concluded that the claims contained no “inventive concept” that makes their subject matter something significantly more than the abstract idea: in particular, “specifying that the BIOS be used to house the verification structure” calls for nothing more than “storing data in the memory of a computer component that generally stores data.” The district court issued its final judgment on December 20, 2017. Ancora timely filed a notice of appeal on December 29, 2017.
We conclude that claim 1 of the ’941 patent is not directed to an abstract idea. Improving security—here, against a computer’s unauthorized use of a program—can be a non-abstract computer-functionality improvement if done by a specific technique that departs from earlier approaches to solve a specific computer problem. The claimed method here specifically identifies how that functionality improvement is effectuated in an assertedly unexpected way: a structure containing a license record is stored in a particular, modifiable, non-volatile portion of the computer’s BIOS, and the structure in that memory location is used for verification by interacting with the distinct computer memory that contains the program to be verified. In this way, the claim addresses a technological problem with computers: vulnerability of license-authorization software to hacking. It does so by relying on specific and unique characteristics of certain aspects of the BIOS that the patent asserts, and we lack any basis for disputing, were not previously used in the way now claimed, and the result is a beneficial reduction of the risk of hacking.
In short, claim 1 of the ’941 patent is directed to a solution to a computer-functionality problem: an improvement in computer functionality that has “the specificity required to transform a claim from one claiming only a result to one claiming a way of achieving it.”
For the foregoing reasons, we reverse the judgment of the district court and remand the case. Costs to Ancora. REVERSED AND REMANDED.
That word 'REVERSED' in the next couple of weeks will mean hundreds of millions of dollars for Strikeforce in my opinion...
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