In
The
In Cosmokey, in reversing a federal trial court's invalidation of a patent for a method of authenticating a user performing a transaction at a terminal, the Federal Circuit dispensed with a discussion of Alice step 1, and went straight to Alice step 2. The Federal Circuit did not decide whether under Alice step 1 the patent claims are directed to a patent-ineligible abstract idea. Instead, the Federal Circuit said that, regardless, under Alice step 2, the patent claims do define subject matter that amounts to "significantly more" than any abstract idea.
In an opinion by
The patented method requires the user simply to activate the user's mobile telephone, or a specific application on the mobile telephone, at a time when the user is seeking to engage in the transaction at the terminal with a "transaction partner," such as a bank. A separate authentication device checks over the mobile telephone network to determine, when the user is seeking to engage in the transaction, if the mobile telephone or its specific application happens to be active. Under the principle of operation of the patented method, the mobile telephone or the specific application is normally inactive. Therefore if it is determined that the mobile telephone or its specific application is active, then it likely that the user is indeed the one seeking to engage in the transaction, so the authentication device sends an authentication message to the transaction partner to enable the user to perform the transaction.
In jumping straight to Alice step 2, the Federal Circuit has paved the way to what may sometimes be a more efficient way of getting to a patent eligibility determination. In view of the hurdles the
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Sunstein
MA 02110-1618
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