In light of recent events, technologies directed toward verifying voter ballots may sound like attractive investment opportunities. However, potential investors often seek to ensure a technology is protected by one or more valid patents before opening their checkbooks. Interestingly, a Federal Circuit case from 2018, Voter Verified, Inc. v. Election Systems & Software, invalidated issued patent claims directed to voting methods and systems that provide for “auto-verification” of a voter’s ballot for lack of subject matter eligibility under 35 USC § 101.
Following a two-part analysis for determining whether claims are directed to patent-eligible subject matter under Alice Corp. v. CLS Bank Int., the court (1) determined that the claims were drawn to an abstract idea of “voting, verifying the vote, and submitting the vote for tabulation” and (2) found “no inventive concept in the claims sufficient to transform them into patent-eligible subject matter.” Recited at a high level of abstraction, the claims at issue before the court included one or more voting stations, each including a computer, a display, a printer, an input device, a ballot scanning machine, and a means for tabulating printed ballots. Among other limitations, the claimed voting station(s) presented an election ballot for voting, received and accepted input of votes by a voter, printed out the ballot for review and verification by the voter, scanned the verified ballot, and tabulated the printed ballots generated by the voting station(s).
In applying the first part of the Alice analysis to determine whether the claims were directed to an “abstract idea,” the court stated that voting was a “fundamental activity that forms the basis of our democracy for hundreds of years” and drew precedence from CyberSource Corp. v. Retail Decisions, Inc., e.g., methods which “can be performed entirely in the human mind are the types of methods that embody the ‘basic tools of scientific and technological work’ that are free to all men and reserved exclusively to none.” Under the second part of the Alice analysis, the court looked to the words of the patent to identify that only standard computer components were used to perform the abstract idea. “The case law has consistently held that these standard components are not sufficient to transform abstract claims into patent-eligible subject matter.”
As highlighted in Voter Verified, potential investors should be wary of patents relating to voting technology given that courts will likely be critical of claims involving voting technologies as being directed toward an abstract idea (e.g., the human activity of voting) without reciting significantly more than the abstract idea. An investor, or her attorney, will want to check that patent claims are not recited at a high level of abstraction, e.g., do not merely use a computer as a tool to improve a process performed by humans. Moreover, it will be important that each issued patent is drafted to clearly show a technical improvement that overcomes one or more technical problems in the prior art and/or clearly shows an improvement to computing technology.