Tuesday, January 12, 2021

Applicant Sturgeon loses 101 case on floral arrangements

The review:

We review the Board’s legal determinations de novo, In re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), including patent eligibility under § 101, Berkheimer v. HP Inc., 881 F.3d 1360, 1365 (Fed. Cir. 2018). We review underlying factual findings for substantial evidence. Elsner, 381 F.3d at 1127 (citing In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000)). I The question of eligibility under § 101 is governed by the two-step framework set out by the Supreme Court in Alice Corp. Pty. Ltd. v. CLS Bank International, 573 U.S. 208 (2014), and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012).

Sturgeon concedes that merely creating a floral arrangement using a computer is an abstract idea, but at step 1, she argues that the claim is not abstract because it adds an element of realism to the floral arrangement. The Board properly found that the claim is directed to “mental processes,” “the abstract idea of managing personal behavior,” and “methods of organizing human activity”—in this case, arranging flowers—and is thus abstract at step 1. See J.A. 7–8. As we have explained, methods which can be performed entirely in the human mind are unpatentable . . . because computational methods which can be performed entirely in the human mind are the types of methods that embody the “basic tools of scientific and technological work” that are free to all men and reserved exclusively to none. Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1378 (Fed. Cir. 2016) (quoting CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011)). The Board correctly determined that claim 2 is directed to an abstract idea. At step 2, Sturgeon argues that claim 2 involves an inventive concept by specifying that an image of the flower at an appropriate angle must be selected from an image library based on the location the user has selected for placing the flower. The Director responds that the ’028 application lacks an inventive concept because it does not describe any specific steps that the computer takes to select an appropriate image from an image library and does not disclose an improvement in computer technology. We agree with the Director and the Board that claim 2 is not directed to an inventive concept as required under the second step of Alice. Claim 2 recites a method of “selecting a flower from an image library,” “placing the flower at a user-selected location,” “dynamically selecting” an image from the library based on the chosen location, and “displaying the selected flower . . . on the display screen.” ’028 application (emphases added). As the Board properly found, these steps do not differentiate the claim from ordinary mental processes and conventional computer activity. All of these elements are described at a high level of generality and require only generic computer implementation. There is no inventive concept here that meaningfully adds to the existing practice of simulating a floral arrangement by creating a digital collage—


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