Late last month, we reported on an Order from the Southern District of Texas invalidating identify theft prevention software under Alice as being directed to an abstract idea and lacking a sufficiently inventive concept. There, Magistrate Judge Palermo found that the idea of preventing identity theft was an idea that has “existed since the dawn of civilization” and compared the claimed invention to the age-old practice of signature comparison and the more recent practice of identification cards. In a similarly-reasoned order, Judge Lefkow of the Northern District of Illinois recently invalidated a patent for a biometric identification and verification system by finding that the patent claimed the idea of comparing known information about an individual to a second set of information for the purposes of confirming an individual’s identity—a “well-known concept that humans have always performed.”
The patent at issue (U.S. Patent No. 7,773,779) related to a “system for providing global biometric identification services to a plurality of remote parties . . . .” Essentially, the patent covered a system where a biometric sample from an individual (e.g. a fingerprint, face image, or iris image) was compared to a second sample collected from the individual when the identity of the individual needed to be ascertained or confirmed. Defendants argued that the patent was directed to the abstract idea of comparing one thing to another. Judge Lefkow agreed, finding that biometric comparison is not a new process and that, for instance, “humans have long compared images of faces they have seen previously . . . to faces they encounter in the world to determine or confirm an individual’s identity.”
Plaintiffs’ arguments did not persuade Judge Lefkow. Plaintiffs argued that the patent was not directed to an abstract idea because the samples “may be generated using an algorithm, which analyzes locations of minutia [sic] contained in fingerprints or a mathematical summary of the patterns of an iris image,” but Judge Lefkow was not swayed, finding that the use of algorithms to analyze information, without more, is essentially a mental process covered by the abstract-idea category. Plaintiffs also argued that the patent “focus[es] on a specific means or method that improves the relevant technology of a global biometric authentication system.” But Judge Lefkow found that the patent covered only a system for receiving and comparing sample templates; it did not speak to developments in the creation of the sample template or discuss how the sample templates were compared.
An interesting aspect of Judge Lefkow’s opinion was her analysis of the “inventive concept” inquiry under Alice step 2. Judge Lefkow relied most heavily on another “well-considered” district court decision enumerating factors distinguishing the patentable from the unpatentable, Market Track, LLC v. Efficient Collaborative Retail Marketing, LLC, No. 14-C-4957, 2015 WL 3637740 (N.D. Ill. June 12, 2015). Judge Lefkow found that the patent used existing generic computer technology, did not describe a technological improvement of any kind, was not directed at a problem unique to computing or the Internet, and only related to a particular industry. The facts that the system made biometric identification more affordable or that it used a “distributed, Internet-based, remote authentication architecture” (i.e., the cloud) were found insufficient to imbue the patent with an inventive concept. Consequently, Judge Lefkow concluded that the patent was not eligible for patent protection under § 101.
An emerging sub-category of Section 101 decisions have invalidated patents broadly directed to some form of analyzing information, particularly analyzing information by some comparison process. IQS illustrates that, no matter the technology field, these types of claims face a tough time overcoming the Alice test unless the claims solve a specific technical problem or recite a non-generic procedure for performing the comparison.