CLS Bank v. Alice Corp. was a deeply fractured en banc decision of the Federal Circuit, in which they couldn’t agree on anything. Seriously. The per curiam decision of the court was one paragraph affirming the lower court’s decision finding the claims ineligible subject matter, but they couldn’t agree on why. There were many concurring, concurring in part, dissenting, and dissenting in par opinions, each expressing a different view as to the role that 35 USC 101 should play in patent subject matter eligibility and invalidity analyses. But none of the opinions garnered a majority of the court (5 of 10 was the max that signed on to any single opinion).
So how will all of this affect video game patents?
The answer, at least for now, is not at all. For now. The USPTO has stated, in response to the CLS Bank decision, that “[a]t present, there is no change in examination procedure for evaluating subject matter eligibility.” The USPTO plans on giving the opinion further study to determine whether any further prosecution guidance is warranted.
Most people (including this author) expect the Supreme Court to take this case and piece back together the fractured jurisprudence regarding 35 USC 101. We’ll have to wait and see…