Electronic Communication Technologies loses appeal of 101 decision at the CAFC

The appellant lost at the CAFC:


Electronic Communication Technologies, LLC (“ECT”)
sued ShoppersChoice.com, LLC (“ShoppersChoice”), alleging that ShoppersChoice infringed claim 11 of U.S. Patent
No. 9,373,261 (“the ’261 patent”). The district court
granted ShoppersChoice’s motion for judgment on the
pleadings that claim 11 was invalid under 35 U.S.C. § 101.
ECT appeals. We have jurisdiction over this appeal under 28 U.S.C. § 1295(a)(1). For the reasons stated below,
we affirm.



The Berkheimer case is cited:


Patent eligibility under § 101 is an issue of law that
sometimes contains underlying issues of fact. See Berkheimer v. HP Inc., 881 F.3d 1360, 1365 (Fed. Cir. 2018).
The Supreme Court has laid out a two-step framework for
evaluating patent eligibility. Alice Corp. v. CLS Bank Int’l,
573 U.S. 208, 217 (2014); Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 70–73 (2012). First, we
determine whether a patent claim is directed to an unpatentable law of nature, natural phenomena, or abstract
idea. Alice, 573 U.S. at 217. If so, we then determine
whether the claim nonetheless includes an “inventive concept” sufficient to “‘transform the nature of the claim’ into
a patent-eligible application.” Id. (quoting Mayo, 566 U.S.
at 72, 78).



A 1927 legal paper is also cited:


Claims, like claim 11, that are directed to longstanding
commercial practices do not pass step one of the two-part
§ 101 test. See, e.g., Alice, 573 U.S. at 219–20 (concluding
claims “drawn to the concept of intermediated settlement”
were directed to an abstract idea at step one because intermediated settlement is “a longstanding commercial practice”); Bilski v. Kappos, 561 U.S. 593, 611 (2010)
(concluding claims drawn to “the basic concept of hedging”
were directed to an abstract idea because “[h]edging is a
fundamental economic practice long prevalent in our system of commerce” (internal citations and quotation marks
omitted)); see also, e.g., Intellectual Ventures I LLC v. Erie
Indem. Co., 850 F.3d 1315, 1327 (Fed. Cir. 2017) (concluding claims were directed to an abstract idea because the
claimed “activity, i.e., organizing and accessing records
through the creation of an index-searchable database, includes longstanding conduct that existed well before the
advent of computers and the Internet”); Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1369–70 (Fed. Cir. 2015) (concluding claims related to tailoring advertisements according to the time of day were directed to an abstract idea because that practice had been
“long-practiced in our society”); buySAFE, Inc. v. Google,
Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (concluding
claims were directed to an abstract idea because the claims
were “squarely about creating a contractual relationship—
a ‘transaction performance guaranty’—that is beyond question of ancient lineage” (quoting Willis D. Morgan, The History and Economics of Suretyship, 12 Cornell L.Q. 153 (1927))).