On May 10, 2013, the U.S. Court of Appeals for the Federal Circuit issued its long-awaited en banc decision in CLS Bank Int'l v. Alice Corp. Pty.1 CLS en banc confronted the scope of the abstract idea exception to patent eligibility under 35 U.S.C. §101 and, more specifically, whether an ineligible abstract idea could become eligible for patentability if implemented on a computer. The case gave the Federal Circuit the opportunity to harmonize its recent inconsistent precedent that often appeared to conflict with U.S. Supreme Court precedent. But the Federal Circuit's en banc decision did no such thing. In fact, numerous commentators have noted that the decision, involving five separate opinions, appears to have accentuated the prior disagreements about the abstract idea exception within the Federal Circuit. These disagreements were highlighted yet again only one month later in Ultramercial II.2 Nevertheless, a close analysis suggests a path to future clarity: a return to a preemption doctrine that is in fact consistent with Supreme Court precedent.
The five opinions of the 10-judge CLS en banc panel and the "Additional Reflections of Chief Judge Rader" yielded formal agreement only on a one-paragraph per curiam judgment in which: (i) a majority of the en banc panel found the method claims abstract; and (ii) the en banc panel was "equally divided" over the patent eligibility of the corresponding system claims (the split decision effectively reinstated the ruling of the district court, where the authors represented CLS Bank). Judge Kimberly Moore's opinion called the court "irreconcilably fractured" and Judge Pauline Newman's opinion deemed it "devoid of consensus" and in a "judicial deadlock."
