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Voter Verified, Inc. v. Election Systems & Software LLC

Litigation re Broad Vote Verification Claims Properly Dismissed on § 101 Grounds

Voter Verified, Inc. v. Election Systems & Software LLC, __ F.3d __, 2018 WL 1882917 (Fed. Cir. Apr. 20, 2018) (Newman, LOURIE, Reyna) (N.D. Fla.: Walker) (3 of 5 stars)

Fed Cir affirms Rule 12(b)(6) dismissal on § 101 grounds. Voter Verified’s patent related to voting methods and systems providing for “auto-verification” of ballots. As an initial matter, a prior litigation between Voter Verified and Election Systems did not lead to issue preclusion on the § 101 issue. The opinion rejects Election Systems’ argument (adopted by the district court) that issue preclusion was inapplicable due to a change in law via Alice, 134 S. Ct. 2347 (2014), or Mayo, 566 U.S. 66 (2012). Alice did not alter the governing law of § 101, as it applied the same two-step framework from Mayo. And Mayo could not be intervening law as it was decided before the conclusion of the parties’ prior litigation (albeit while the parties’ appeal was pending). Nevertheless, issue preclusion did not apply because, applying Eleventh Circuit law, the § 101 issue was not actually litigated, as Election Systems did not respond to Voter Verified’s arguments supporting subject-matter eligibility. Further, the § 101 issue of invalidity was not necessary to the judgment of non-liability in the prior action.

The district court did not err in dismissing Voter Verified’s case on § 101 grounds. Applying the two-step Alice test, Voter Verified’s claims were “drawn to the concept of voting, verifying the vote, and submitting the vote for tabulation,” which are abstract ideas, noting that Voter Verified itself characterized them as “human cognitive actions.” Op. at 14. And the opinion finds no inventive concept to transform these ideas into patent-eligible subject matter. Incorporation of components such as a laser printer, scanner, or computer, is insufficient.

KEYWORDS: ISSUE PRECLUSION (NO); INTERVENING LAW; SUBJECT-MATTER ELIGIBILITY (NO); RULE 12