EARLIER this year we repeatedly noted that in 2017 the Court of Appeals for the Federal Circuit (CAFC) had rejected software patents pretty much every single time. In early 2018, however, in spite of squashing most USPTO-granted patents of a Microsoft-connected troll, Finjan, one patent endured and it caused a lot of damage. Tens of millions of dollars in so-called 'damages'.
The U.S. Supreme Court’s June 2014 landmark decision Alice v. CLS Bank International, 134 S.Ct. 2347 (2014), altered the course and viability of software patents in the United States and continues to cause uncertainty over the eligibility of software for patent protection. Alice announced a multi-step test for analyzing patent eligibility, under which the basic question for any software application is, “does the application satisfy the patent eligibility conductions of 35 U.S.C. Section 101 (Section 101)?” The United States Patent and Trademark Office (USPTO) has established examiner guidelines for software patent applications and patent practitioners have become increasingly skilled at responding to USPTO Section 101 rejections. Since the Alice decision, a number of decisions by the U.S. Court of Appeals for the Federal Circuit, a number of Federal Circuit decisions have had great influence on the examination practice in software, and at least two 2018 decisions by the Federal Circuit in patent infringement appeals have found the asserted software claims to be patent eligible. In both of these patent infringement appeals, the decision hinged on the disclosure or written content of the application’s specification.
[...]
Finjan arose out of a patent infringement action that Finjan brought against Blue Coat Systems alleging infringement of four Finjan patents, including U.S. 6,154,844, that are directed to identifying and protecting against malware. Finjan, at 1302. As a result of the trial in the district court, the jury awarded Finjan $39.5 million as reasonable royalty damages, which included $24 million for Blue Coat Systems’ infringement of the ‘844 patent. In a related bench trial addressing the nonjury legal issues, the district court concluded that satisfied Section 101 the ‘844 patent contained patent-eligible subject matter.
Finjan Holdings Inc. (FNJN) said it has filed a patent infringement lawsuit against Check Point Software Technologies Inc. ( CHKP ) and Check Point software Technologies Ltd.
The Complaint, filed in the U.S. District Court for the Northern District of California on March 3, 2018,, alleged that the Check Point products infringed at least one or more of Finjan patents.