Tension in the PTAB: How to Determine Whether a Patent Claims a Covered Business Method?

Authored by Brian S. Mudge and Andrew D. Kasnevich
Congress enacted the transitional program for post-grant review of covered business method (“CBM”) patents by the Patent Trial and Appeal Board as a quick and cost-effective way to adjudicate the validity of business method patents. In determining whether to institute a patent trial, the PTAB normally decides, as a threshold matter, whether the challenged patent qualifies as a covered business method, i.e., whether the patent claims a method, or corresponding apparatus, that is used in the practice, administration, or management of a financial product or service. In the early stages of the program’s existence, the PTAB found a range of business methods and software patents eligible for CBM review.1

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