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Secure Axcess, LLC v. PNC Bank N.A.

Fed Cir Denies En Banc Review of Decision Limiting CBM Status to Claims Reciting Financial Activity

Secure Axcess, LLC v. PNC Bank N.A., (Fed. Cir. June 6, 2017) (Per curiam; Taranto (with Moore), concurring; O’Malley, concurring; Reyna, concurring; Lourie (with Prost, Dyk, Wallach, Hughes), dissenting; Dyk (with Wallach, Hughes), dissenting; Plager (concurring as to denial of panel reh’g)) (PTAB) (3 of 5 stars)

Fed Cir denies petitions (U.S. Bank petition; Nationwide Bank petition) for panel and en banc rehearing. The issue was whether patents whose claims included no reference to financial activity, but whose specifications indicated that they were for use in that field, qualified for CBM review.

Taranto concurrence: Judge Taranto approves the panel’s decision that claims not clearly directed to financial activity would not qualify for CBM review. He notes that congressional redrafting would be a better approach to address the policy concerns raised by others.

O’Malley concurrence and Reyna concurrence: Judges O’Malley and Reyna approve the denial of en banc review, for the reasons in Judge Plager’s concurrence in the denial of panel rehearing.

Lourie dissent: As in his dissent from the panel opinion, Judge Lourie disagrees with the panel’s analysis, and would have taken the matter en banc. In his view, the panel’s reasoning is inconsistent with the statutory language, congressional intent, and Fed Cir precedent.

Dyk dissent: Judge Dyk raises questions about whether the issue of whether claims address a “financial product or service” is appealable under the AIA. In his view, it is not appealable, and Versata, 793 F.3d 1306 (Fed. Cir. 2015), reaching the contrary result, was wrongly decided.

Plager dissent from denial of panel reh’g: Judge Plager endorses the panel’s reasoning, and emphasizes that because this was an appeal from an administrative agency, the Fed Cir (and thus the panel) was not in a position to substitute an alternate basis on the CBM-coverage issue from the basis used by the PTAB. He associates Judge Lourie’s dissent as advocating such an alternate basis.

Judge Stoll did not participate in en banc proceeding. Judge Plager participated only in the decision on panel rehearing.

KEYWORDS: DENIAL OF EN BANC REHEARING; DENIAL OF PANEL REHEARING; COVERED BUSINESS METHOD