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In re Eberra

Representative Claim

1. A process for providing a television network comprising:
(a) opening at least one physical location for a production of a television program;
(b) requiring at least one customer to make a purchase of a product;
(c) allowing said customer to give a performance in said production of said television program, in exchange for making said purchase of said product;
whereby said purchase made by said customer results in said production of said television program for said performance of said customer on said television network.

Posture:

Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 12/230,058.

Abstract Idea: Yes

The Federal Circuit affirmed the Board’s Step One conclusion that the claims at issue were directed to the abstract idea of “promoting the purchase of a product with the incentive being a spot in a television program, i.e. product promotion.” The Federal Circuit noted that like “the concept of risk hedging, which the Supreme Court found to be an abstract idea in Bilski v. Kappos, the concept of product promotion is a ‘fundamental economic practice long prevalent in our system of commerce.’”

The patent applicant argued that the claims were not directed to the abstract idea of product promotion and were instead directed to what the specification describes as a “new Customercast model of television” in which “the basic principle is to attract large numbers of people to perform on television, and require a purchase for the experience.” The Federal Circuit found that argument unpersuasive, however, noting that “the abstract nature of the claims is not altered at step one by the existence of claim limitations (much less characterizations in the specification) that ‘add a degree of particularity’ to the implementation of the abstract idea.” To summarize the circuit court’s analysis: Claim 1, considered as an ordered combination, simply described “a form of product promotion in which the incentive for purchasing a product is the opportunity to perform in a television program.” The Federal Circuit held this was “more specific than the concept of product promotion writ large, but it [was] no less abstract.”

Something More: No

The Federal Circuit affirmed the Board’s Step Two finding that the claim limitations, considered individually or as an ordered combination, did not add an “inventive concept” that transformed the abstract idea of product promotion into a patent-eligible invention that was significantly more than the abstract idea itself. The Federal Circuit held that “each specific step in the claims—opening a location (which requires nothing more than finding a location), requiring a purchase, and allowing a performance in a television program—[was] a routine television-production or advertising activity performed in a conventional way, as described in the specification.”