UPDATE: The Federal Circuit issued an en banc decision holding the claims invalid.  Please see our May 13, 2013 post for more details.

Today, Tues., Oct. 9, 2012, in CLS Bank v. Alice Corp., No. 2011-1301, the Federal Circuit ordered rehearing en banc on the patent eligibility of computer-implemented inventions.  The CLS Bank original, and now vacated, decision found a stock trading platform invention patent eligible under a permissive view of § 101 patent eligibility that counseled focusing on more established invalidity defenses under §§ 102, 103 and 112.   But a few weeks later, the Bancorp. decision found that a life insurance policy value tracking invention was not patent eligible and breathed life into the patent eligibility defense against computer-implemented inventions.

The questions presented for en banc review on computer-implemented invention patent eligibility are as follows:

a.       What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible “abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?

b.      In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?

The briefing schedule is as follows:  CLS Bank’s (alleged infringer) brief  is due in 45 days; Alice’s (patent owner) responsive brief is due 30 days later and CLS Bank’s reply brief is due 15 days later.  The Court invited amicus briefing without requiring prior consent of the parties or leave of court.