Federal Circuit Invalidates Device Patent As Directed To An Abstract Idea

Nearly seven years after the landmark Supreme Court decision in Alice Corp. v. CLS Bank Int'l, subject matter eligibility for patent claims under 35 U.S.C § 101 remains a moving target. In Alice, the Court found claims for a computerized escrow arrangement ineligible for patenting because they were directed to the abstract idea of "intermediated settlement" and did not recite an inventive concept that could impart eligibility under Section 101. While the Alice case focused on a software invention, a few recent lower court decisions suggest that, in certain circumstances, medical device patents may not be immune from similar patent eligibility challenges.

Late last year, in a case captioned DUSA Pharmaceuticals, Inc. v. Biofrontera Inc., a federal court in Massachusetts faced the question of whether patent claims directed to an improved light source for photodynamic therapy were ineligible for patenting. The representative claims at issue recited: