Concurrent to the recently discussed PDC decision, the plaintiff in ecobee Techs. ULC v. Ollnova Techs., Ltd. appealed to the Federal Circuit after a jury found that one of the defendant’s patents, invoking a combination of two different wireless communication protocols, was not ineligibly abstract. ecobee argues that the jury instructions used by the Eastern District of Texas erroneously permitted the jury to consider subject matter found ineligible under Alice Step One when seeking a transformative inventive concept for Step Two. If the Federal Circuit agrees, patents directed in part to ineligible subject matter may face significant difficulties at trial. The case has been briefed, and several amicus curiae have joined in.
While the recent decision and pending appeal directly affect the courts, the USPTO has codified the Alice–Mayo framework in its Manual of Patent Examining Procedure; judicial developments of the framework may therefore impact patent applicants as well as litigants.
