Here’s the latest.

Federal Circuit to district court: Show Us Your Work on Section 101

Reported by Scott Graham at

Judge Connolly of the District of Delaware now needs to revisit Realtime Data v. Reduxio Systems after the Federal Circuit remanded the case on Friday. Scott Graham recaps the decision where the Federal Circuit asked for more from the district court than a ruling that was “too cursory to allow for meaningful appellate review.” Judge Connolly had been reluctant to issue opinions regarding patent eligibility due to the Federal Circuit’s de novo review, even stating in a hearing, “I think you can take your issues up with the Federal Circuit, and if I’m wrong, I’m wrong.” Judge O’Malley, writing for the majority, noted that the district court asked for arguments on both sides, but did not address the arguments in the opinion.

O’Malley stressed that the court isn’t requiring written opinions on every Section 101 motion in a patent case. The court has affirmed oral orders in the past. “This case is unique, however, in its paucity of analysis and the closeness of the underlying legal issue,” she wrote.

For more information, see our coverage.

No Pause on American Axle Case for Coming Supreme Court Petition

Reported by Perry Cooper at Bloomberg Law

The Federal Circuit issued an order denying American Axle’s petition to stay the case while American Axle prepares to petition the Supreme Court for review. Perry Cooper summarizes the outcome where despite the denial, the Federal Circuit demonstrated a hopefulness for Supreme Court review.

Each of the 12 active judges on the Federal Circuit has asked the Supreme Court for guidance on eligibility. “There is very little about which all twelve of us are unanimous, especially when it comes to § 101,” [Judge Moore] said. “We were unanimous in our unprecedented plea for guidance.”

While the Federal Circuit looks for a consistent standard, the district court will continue proceedings after the Federal Circuit reversed the findings of invalidity in a split decision in July.

American Axle didn’t show it will suffer irreparable harm if the trial court continues proceedings on the claims the Federal Circuit said might be valid, the majority said. Continued litigation and attendant expenses don’t constitute irreparable injury, the court said.

For more information, see our coverage.

Determining the Likelihood that an AI Patent Application Will Be Allowed at the USPTO

Reported by Kate Gaudry and Leron Vandsburger at IP Watchdog

More and more businesses are investing capital into artificial intelligence (“AI”), and the USPTO requested public comment last year on a variety of questions surrounding AI. Kate Gaudry and Leron Vandsburger analyzed USPTO examination statistics for different types of AI to determine their patenting prospects. The pair noted a drop in allowances and a rise in rejections following the decisions in Alice Corp. v. CLS Bank and Electric Power Group, LLC v. Alstom S.A.

For example, the Electric Power Group decision may have triggered training and/or guidance provided to examiners in class 706. . . . Notably, the post-Alice dips in bioinformatics and business methods and the post-Electric Power Group dip in the AI class coincide with increased prevalence in eligibility rejections.

Ultimately, Gaudry and Vandsburger were not able to come to any sweeping conclusions due to the variability within the data. As a result, they caution applicants and patent prosecutors to be aware of the individual statistics surrounding their type of AI and the examiner reviewing the application.