Winston Churchill and Alice Rejections

Winston Churchill occupies a significant place in Western history. If you have ever been to London and toured the Churchill War Rooms, you get a true sense of the man and how he influenced the outcome of a war that shapes much of our modern world.

In fact, you might not know, but how Winston displayed information to help manage the war effort turns out to, allegedly, be critically important to whether Facebook and Snap infringe patents invented by Blackberry. Yes, you read that sentence correctly.

That the Section 101 analysis has devolved to the point where (highly paid) attorneys representing the worlds' largest companies make arguments about Winston Churchill's war management boards as a reason to find patent claims invalid under an Alice test illustrates just how nonsensical the overall Alice situation has become. The Alice framework is so flexible that it presents a vehicle to attack not just software patents, but almost any invention. At the PTAB, it is exceedingly difficult to overcome an Alice rejection, and Examiners have learned as much, leading to (unsurprisingly) more 101 rejections.

Back to Snap and Winston, the Blackberry patent claims at issue relate to

A server configured to: receive data indicative of a current location of a first mobile device; determine at least one action spot within a predetermined distance from the current location of the first mobile device, the at least one action spot corresponding to a location where at least one second mobile device has engaged in at least one documenting action, the documenting action including at least one of capturing images, capturing videos and transmitting messages; transmit the at least one action spot to the first mobile device; and transmit to the first mobile device, an indication of an activity level at the at least one action spot, wherein the activity level is based upon at least one of a number of images captured, a number of videos cap tured, and a number of messages transmitted

Apparently, counsel for Snap at a Motion to Dismiss hearing argued that the claim was abstract under Alice, and involved merely conventional approaches. Specifically, Snap argued that:

the concepts recited by the claims had been readily achieved throughout the course of history in many contexts, including by generals studying troop formations in their war rooms and companies reporting on traffic patterns. As the Court observed at the hearing, however, Snap’s examples do not allow for the same level of specific information tailored by location for a particular individual or the ability to adapt the displayed information based on changes in the individual’s location. While true that Winston Churchill could have had a mobile war room trailer and a diligent staff attempting to automatically update his war map relative to his position as he traveled with the happenings surrounding him, at least at this stage in the proceedings, there is no basis to show that his staff could do so in the way provided by the steps claimed by the ’327 and ’084 Patents (that is, by automatic and precise transmission of various types of information between two components based on their relative locations − and specifically transmission of information based on the “documenting” activity of a nearby component).

Patent attorneys used to focus on how the claimed invention included new and non-obvious features beyond the state of the art. Now they are arguing about Winston Churchill running a fictitious war room with diligent staff all around him. How far we have come.