Washington DC
06 January 2017
Reporter: Barney Dixon

McRO case denied en banc rehearing


Bandai Namco Games America has been denied an en banc rehearing in its cornerstone software patent case against McRO.

All regular active judges for the US Court of Appeals for the Federal Circuit heard the petition and issued their response at the end of 2016.

Mark Raskin, partner at Mishcon de Reya, who is serving as trial counsel in the case, said: “We’re very excited that the entire Federal Circuit has recognised the technical innovations of our client’s inventions and the California cases will now proceed, hopefully expeditiously.”

The McRO case drew a lot of attention with its interpretation of the landmark Alice v CLS Bank decision.

In September 2016, the Federal Circuit overturned the US District Court’s decision in McRO that the software patent claims at issue were directed to an abstract idea and therefore not eligible for patent protection.

The district court had said that the claims were too broad and limited to a specific set of rules and as such, were abstract ideas.

But the Federal Circuit warned that the district court might have oversimplified the claims.

In November, the US Patent and Trademark office (USPTO) released new guidance in light of the McRO decision.

It used McRO as a basis for extended patent prosecution advice, stating: “Examiners should consider the claim as a whole under ... the USPTO’s subject matter eligibility guidance, and should not overgeneralise the claim or simplify it into its ‘gist’ or core principles, when identifying a concept as a judicial exception.”

“An ‘improvement in computer-related technology’ is not limited to improvements in the operation of a computer or a computer network per se, but may also be claimed as a set of ‘rules’ (basically mathematical relationships) that improve computer-related technology by allowing computer performance of a function not previously performable by a computer.”

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