As further guidance on how to determine whether a patent claim is directed to an ineligible abstract idea under the Alice Two-Step Test, the Federal Circuit issued a precedential opinion, Beteiro v. DraftKings, No. 2022-2275 (Fed. Cir. June 21, 2024), identifying four “well-settled indicators of abstractness.”
The patents-at-issue are directed to using computers and GPS devices to facilitate remote participation in live gambling/games. The Federal Circuit affirmed the district court’s ruling that the asserted claims are patent ineligible under 35 U.S.C. § 101 because they are all directed to the abstract idea of “exchanging information concerning a bet and allowing or disallowing the bet on where the user is located.” As part of its analysis, the Federal Circuit references four “well-settled indicators of abstractness”:
- The claims recite generic steps, such as “detecting information,” “generating and transmitting a notification based on the information,” “receiving a message,” “determining … and processing information,” which are of a kind frequently held to be abstract.
- The claims are drafted using largely (if not entirely) result-focused functional language, containing no specificity about how the purported invention achieves those results.
- The claims are analogous to those deemed abstract in Federal Circuit precedents, specifically those involving methods of providing particularized information to individuals based on their locations.
- The claims can be persuasively analogized to longstanding “real-world” (“brick and mortar”) activities.
Notably, the examiner had expressly evaluated the eligibility of a subset of the asserted claims during prosecution and found them patent-eligible under § 101 based on the requirement in the claims of a particular machine or processor. On appeal, the Federal Circuit nonetheless emphasized that a patent examiner’s § 101 consideration during prosecution “does not in any way shield the patent’s claims from Article III for patent eligibility.”