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Aatrix Software, Inc. v. Green Shades Software, Inc.

No En Banc Review of Decisions Finding Fact Issues in § 101 Inquiry

Aatrix Software, Inc. v. Green Shades Software, Inc., __ F.3d __, 2018 WL 2436813 (Fed. Cir. May 31, 2018) (Per curiam; concurrence by Moore (joined by Dyk, O’Malley, Taranto, Stoll); concurrence by Lourie (joined by Newman); dissent as to rehearing en banc by Reyna) (M.D. Fla.: Schlesinger) (3 of 5 stars)

Fed Cir denies petition for panel and en banc rehearing. The Court’s mandate, based on the panel opinions (Aatrix, 882 F.3d 1121; Berkheimer, 881 F.3d 1360) will issue on June 7.

Moore concurrence: Judge Moore writes to describe how the reasoning of Aatrix, and its companion Berkheimer is “narrow,” and confirms that “whether [in the context of a § 101 inquiry] a claim element or combination is well-understood, routine, and conventional is a question of fact” as part of step two of the Alice inquiry. Op. at 9. That question must be treated like any other fact question under the Rules and the standards for summary judgment.

Lourie concurrence: Judge Lourie calls for “clarification by higher authority, perhaps by Congress, [as to] what so many in the innovation field consider are § 101 problems.” Op. at 1. He describes how individual cases are “imperfect vehicles for enunciating broad principles” necessary to the § 101 inquiry.

Reyna dissent: Judge Reyna would have granted the petition for rehearing en banc, urging that the reasoning in Aatrix and Berkheimer that the § 101 inquiry involves fact issues “alter[s] the § 101 analysis in a significant and fundamental manner.” Op. at 3.

KEYWORDS: SUBJECT-MATTER ELIGIBILITY; EN BANC REHEARING (NO); PANEL REHEARING (NO); SUMMARY JUDGMENT