Just What Is "Covered" Under A Covered Business Method Post-Grant Review?

The Transitional Program for Post-Grant Review of Covered Business Methods (CBM) has been underway since September 16, 2012, yet the number of CBMs filed to date has been underwhelming. So far, parties have filed only 25 petitions, of which 10 were filed by Liberty Mutual.

Why the reticence to utilize CBMs? Perhaps the name alone suggests limited scope, and potential petitioners believe that the program is limited only to patents examined in Class 705, the USPTO classification most commonly associated with business methods. The legislative history, the PTO regulations, and the filings to date, however, indicate that CBM jurisdiction may be broader than practitioners realize.

First, the AIA legislation itself does not limit CBM jurisdiction by class. Instead, an eligible CBM patent is defined in section 18 of the AIA (now implemented at 37 C.F.R. § 42.301(a)) as: