Even in the face of strong opposition by Chief Judge Randall Rader, The Court of Appeals for the Federal Circuit (CAFC) has upheld a District Court finding that Accenture’s patent claims (system claims, as Accenture had already conceded defeat with respect to its method claim) in U.S. Patent 7,013,284, the ’284, patent are patent-ineligible both because Accenture was unable to point to any substantial limitations that separate them from the similar, patent-ineligible method claim and because, under the two-part test of CLS Bank, the system claim does not, on its own, provide substantial limitations to the claim’s patent-ineligible abstract idea.
Judge Rader didn’t like it, stating, in effect, a court can always peel back a claim far enough to find an abstract idea, but that’s not what patent eligibility should be about:
“[A]ny claim can be stripped down, simplified, generalized, or paraphrased to remove all of its concrete limitations, until at its core, something that could be characterized as an abstract idea is revealed. A court cannot go hunting for abstractions by ignoring the concrete, palpable, tangible limitations of the invention the patentee actually claims.” Ultramercial, Inc. v. Hulu, LLC, 2010-1544, 2013 WL 3111303, at *8 (Fed. Cir. June 21, 2013). In my judgment, the court has done precisely that. Therefore, I respectfully dissent.”
The Patent Prospector takes this to what might be its only logical conclusion: Whereas a claim that poses "any risk of preempting an abstract idea" is unpatentable, it necessarily follows that any task requiring cognition is unpatentable. Because presumably no task is "mindless," this means software that performs a task must be unpatentable.