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Electronic Communication Technologies, LLC v. ShoppersChoice.com, LLC

Patent Office’s Quick Allowance of Claim Does Not Indicate Patent-Eligibility

Electronic Communication Technologies, LLC v. ShoppersChoice.com, LLC, __ F.3d __, 2020 WL 2479692 (Fed. Cir. May 14, 2020) (PROST, Dyk, Wallach) (S.D. Fla.: Marra) (2 of 5 stars)

Fed Cir affirms judgment on the pleadings that ECT’s asserted claim is invalid under § 101. ECT’s claim relates to a system for receiving notifications on a device “involving advance notice of a delivery or pickup.” The opinion applies the two-step Alice/Mayo framework. At step one, the district court correctly determined that ECT’s claim is directed to the abstract idea of providing advance notification of a pickup or delivery. The opinion describes this as a “fundamental business practice.” Op. at 5. To the extent the claim adds additional measures purporting to add security, those are also abstract. ECT’s contention that its claim is unique, without more, does not make it non-abstract. ECT’s contention that the application “sailed through” prosecution, and that the Patent Office “double checked” patent eligibility after issuing the notice of allowance, “bear no relationship to the subject matter to which claim 11 is directed and do not negate the fact that claim 11 is directed to longstanding business practices.” Op. at 8. At step two, the opinion describes how ECT’s claim lacks an inventive concept sufficient to confer patent-eligibility. That prior opinions have held a “far shorter” claim patent eligible is not contradictory, nor does ECT’s contention that “less enabled” claims have been held patent eligible. That the district court did not engage in claim construction before deciding eligibility was not improper because ECT had identified no term requiring construction before eligibility could be evaluated.

KEYWORDS: SUBJECT-MATTER ELIGIBILITY