On August 26, 2019 I posted an article regarding “Known Technology Is Not Abstract”. In that post I complained of the Federal Circuit determining a patent for an automatic garage door opener as being invalid since it utilized wireless technology and wireless technology was deemed to be a well understood technology and therefore an abstract idea. Abstract ideas are not patentable under 35 USC 101.
The decision of the Federal Circuit (Chamberlain Group, Inc. v. Techtronic Industries Co.) stated use of a “well understood” off-the-self wireless technology for its intended purpose of communicating information constituted an abstract idea, thereby invalidating the patent. This is nonsense.
It is nonsense because the subject patent was clearly limited to a narrow application of wireless technology and wireless technology was simply one component of the patentable invention. Stated differently, the patentee was not claiming patent rights to wireless technology. (Wireless technology, like radio waves, does undoubtedly comprise elements of unpatentable natural phenomena. But again, gravity is not patentable. However untold thousands of machine patents exist wherein the force of gravity it incorporated into the operation of a properly patented machine.)
Now (September 25, 2019) the Federal Circuit distinguished the Chamberlain decision in SIPCO v. Emerson Electric. The distinguishing factor was that SIPCO used a “low power transceiver” to wirelessly transmit a signal. There was no explanation whether this “low power transceiver” was or was not “off the shelf” technology. It would seem to me that adjusting the power to a transceiver would be a standard design consideration and therefore not determinative of patentability.
The Federal Circuit satisfied itself in distinguishing the “low power transceiver” of a wireless signal device from the “well understood” technology used for a garage door opener by stating the SIPCO claim 1 provided a specific implementation of a communication scheme through a two step communication path that combined an established communication network (well understood technology?) with short range wireless connection between a low power transceiver and an intermediate node on an established network. The court went on to state that the SIPCO two step solution extended the reach of an existing network while overcoming problems of interference, contention and interception. It would be my “real world experience” that a garage door opening system would also, of necessity, have a low power requirement to avoid one garage door activator causing activation of separate garage door opener within a high power/large range wireless system.
It continues to be my opinion that the courts and USPTO are unable to provide clear guidance regarding whether or not an innovation is patentable whenever their vision becomes clouded with the argument that the patentable invention may incorporate an “abstract idea”. Contrast this with my prior (up beat?) article Patenting Medical Devices and Procedures. In that article, I opined that the Federal Circuit was looking for a way to establish order from the chaos created by the Supreme Court. Now the Federal Circuit appears equally befuddled.
What does this mean? It means that trying to advise clients of whether a development is patentable becomes an un-necessarily vague or uncertain task. This may motivate entrepreneurs to forego seeking patent protection for valuable IP. It hinders innovation.
It also means caution must be exercised in drafting patent claims. Broad patent claims may be the most valuable. However I believe it to be wise to also draft independent claims that contain narrowing limitations or restrictions that make clear a natural phenomena or abstract idea is not the dominating feature of the claimed invention.
Copyright David McEwing, 2019