Michael Kiklis Examines Impact of Electric Power Group Ruling on Software Patentability

August 20, 2019

In an article published by Law360, Bass, Berry & Sims attorney Michael Kiklis examines the recent and frequent application of the Federal Circuit’s 2016 decision in Electric Power Group LLC v. Alstom SA, which held that data gathering, analysis and display is an abstract idea, hence rendering many software inventions abstract.

The Federal Circuit has been applying Electric Power Group more frequently and has even extended its use to find that “entering, transmitting, locating, compressing, storing, and displaying data” and “capturing and transmitting data from one device to another” are abstract ideas. In fact, Electric Power Group has now been used almost 20 times by the Federal Circuit to rule software inventions as abstract by expanding its application and dramatically summarizing claims to fit within its scope. Electric Power Group and its progeny thus present a high risk to software inventions, even the most innovative, and it is vital for practitioners to know how to avoid Section 101 invalidity risk based on these cases.

In the article, Michael discusses the Electric Power Group ruling as well as the subsequent, recent cases that have been issued, such as West View Research LLC v. Audi AG, Two-Way Media Ltd. v. Comcast Cable Communications LLC, and Uniloc USA Inc. v. ADP LLC.  Michael then provides practical advice for avoiding patent-eligibility issues from the Electric Power Group line of cases.  For example, when drafting a patent application for a software invention that involves data gathering, analysis, and display (or something similar), he suggests practitioners provide sufficient technical details in both the specification and the claims. “Practitioners should draft patent specifications and claims with sufficient technical details, rather than functionally.”

The full article, “How Electric Power Group Case Is Affecting Software Patents,” was published August 19, 2019 by Law360 and is available to subscribers here (a link to a PDF of the full content is available by clicking on the article’s title).