In its original panel decision, the Federal Circuit narrowly interpreted the Covered Business Method statue, holding that CBM review is only available when claims themselves are directed towards financial service.
” In its decision the court walked through the statue, noting that the focus is on the claimed invention rather than the asserted marketplace or potential uses of the invention. Thus, the relevant question is not how the invention is used but rather whether the claims are directed to financial service. According to the court, any other reading, would “give the CBM program a virtually unconstrained reach.”
The challengers then petitioned for en banc review. That petition has now been denied – although over vigorous dissent. (6-5 denial, with Judge Stoll not participating). As the Federal Circuit continues to be divided, it is most interesting to consider the sides that have formed:
Supporting Rehearing (and broader scope of CBM review, and broader 101 application): Chief Judge Prost and Judges Lourie, Dyk, Wallach, and Hughes
Against Rehearing (for narrower CBM review and reduced 101 application): Judges Moore, Taranto, O’Malley, Reyna, Newman, and Chen.
Judge Plager also sat on the original panel, but his senior status precluded his voting on the en banc rehearing question.