Why the Federal Circuit voted against a ballot verification patent
The U.S. Court of Appeals for the Federal Circuit, the court that hears all appeals of patent cases, continues to invalidate patents directed to abstract ideas. It applies the test established in 2014 by the U.S. Supreme Court. In a recent case, it ruled that a patent covering voting methods and systems providing for “auto-verification” of ballots was invalid as attempting to patent an abstract idea.
Is it patentable?
Voter Verified, Inc., has twice sued Election Systems & Software LLC for infringement of a patent for computer-implemented methods of “voting and checking the accuracy of a paper election ballot.” Generally, the patent describes a process in which:
- A voter enters a vote into a voting system,
- The system generates a corresponding printed ballot, and
- The voter verifies the printed ballot for accuracy and submits it for tabulation.
In the most recent case, Election Systems filed a motion to dismiss, arguing that the patent was invalid under Section 101 of the Patent Act. This provision limits patent-eligible subject matter to new and useful — or new and useful improvements of — processes, machines, manufactures or compositions of matter. Laws of nature, physical phenomena and abstract ideas aren’t patent-eligible.
The trial court applied the Alice test for identifying patents that cover nothing more than abstract ideas and granted Election Systems’ motion to dismiss. Under the Alice test, the court determines whether the claimed invention is a patent-ineligible abstract idea. If so, it determines whether the invention includes an “inventive concept” that transforms it into a patent-eligible application of the abstract idea. Voter Verified appealed the trial court’s dismissal.
Is it abstract and transformative?
Like the trial court, the Federal Circuit also applied the Alice test. On the first step, it found the patent as a whole covered the concept of voting, verifying the vote and submitting the vote for tabulation. Even Voter Verified characterized these steps as “human cognitive actions,” and the court concluded they were “nothing more than abstract ideas.”
Moving to the second step, the court found no inventive concept sufficient to transform the invention into a patent-eligible application of the abstract ideas. The patent described the use of general purpose computer components, including a standard personal computer, a visual display device, a keyboard, data storage devices, a laser printer and a scanner. As the Federal Circuit noted, earlier cases have repeatedly held that such standard components aren’t sufficiently transformative.
The Federal Circuit has been applying the two-step test for several years. One consistent takeaway from the resulting rulings? The court is likely to find that patents covering human activity, with computer or software components that add no more than conventional functions, are invalid.
Voter Verified, Inc. v. Election Systems & Software LLC, No. 2017-1930, April 20, 2018, Fed. Cir.