Many patent attorneys, having backgrounds in the hard sciences, can appreciate repeatable tests and bright-line rules. Patent law, however, is rarely clean. The Court of Appeals for the Federal Circuit (CAFC) has illustrated this with a number of split decisions issued over the past few months. The opinions have covered a wide range of patent law—for example, patentable subject matter, obviousness, and damages—and have demonstrated disagreement on the court about how to apply certain tests and even how to interpret the CAFC’s own decisions. This article reports on three recent split decisions, and reviews the competing opinions of the judges.

‘Visual Memory’

In Visual Memory v. Nvidia, No. 2016-2254 (Fed. Cir. Aug. 14, 2017), plaintiff Visual Memory appealed the District Court for the District of Delaware’s decision to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The dismissal was based on a finding that U.S. Patent No. 5,953,740 (the ’740 patent) was directed to patent-ineligible subject matter. The CAFC reversed and remanded, holding that the ’740 patent is directed to an improvement to computer memory systems and not an abstract idea.

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