By
K&L Gates
On
March 8, 2018, the Court of Appeals for the Federal Circuit, in Exergen Corp.
v. Kaz USA, Inc., held that patent claims involving body temperature detection
were directed to patent-eligible subject matter under § 101. The Federal
Circuit also held that trial court findings regarding the second prong of the
subject matter eligibility test under 35 U.S.C. § 101 (“§ 101”)—whether claimed
elements were routine, conventional, and well understood in the art—are
findings of fact, entitled to the deference of clear error review. [1] The
Court stated that although the question of subject matter eligibility is one of
law, it can be based on underlying findings of fact, analogizing the inquiry to
indefiniteness, enablement, and nonobviousness. The opinion is nonprecedential
but provides insight into how Federal Circuit judges view the analytical
framework for § 101.
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