Bilski update: District court rules “comparator” as used in patent claims is not a device

In a decision illustrating the continued uncertainty over the patentability of business processes in view of the Federal Circuit’s In re Bilski decision, the District of Arizona recently ruled a patent claim invalid under Section 101 of the Patent Act even though it recited a “comparator”  and illustrated the comparator as an electronic device that compares two input signals.  comparator

In Research Corporation Techonolgies, Inc.  v.  Microsoft Corp. , D. Ariz., No. CV-01-658-TUC-RCJ, 7/28/09, the court considered (among other things) claim 29 of U.S. Patent 5,477,305, which recited: 

apparatus for the halftoning of color images comprising a comparator for comparing, on a pixel-by-pixel basis, a plurality of color planes of said image against a blue noise mask …

Construing claim 29 as a process claim rather than an apparatus claim, the court held that claim 29 failed the “machine-or-transformation” test of In re Bilski.  Specifically, the court stated:

This recitation does not mandate a machine. It offers software as an example of what this device that compares numbers could be . . . . The comparator is a collection of operations that performs an algorithm. The use of the term “device” is not synonymous with machine.

In June 2009, the U.S. Supreme Court agreed to review the Federal Circuit’s In re Bilski decision.  According to the Supreme Court’s docket, the petitioners (Bilski and Warsaw) filed their briefs with the Supreme Court on July 20, 2009.

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