An Economic Test For Patent Eligibility?

In the non-precedential decision issued in Exergen Corp. v. Kaz USA, Inc., Judge Moore considered the time and money it took to develop the invention at issue when deciding that the claims satisfy the patent eligibility requirement of 35 U.S.C. § 101. While other patent eligibility decisions make clear that an inventor’s investment will not always be relevant, Exergen offers an interesting way to evaluate whether claim elements relate to more than “well-understood, routine and conventional” activity.

The Patents At Issue

The patents at issue were Exergen’s U.S. Patent Nos. 6,292,685 and 7,787,938, directed to a “body temperature detector” and related methods. Method claim 24 of the ‘685 patent was designated as representative: