In C. R. Bard Inc. v. AngioDynamics, Inc., No. 2019-1756 (Fed. Cir. Nov. 10, 2020), the Federal Circuit clarified the validity analysis in connection with claims directed to “printed matter” (i.e., information claimed for its communicative content, without interacting with other claim elements in a functional way). The relevant claims were directed to Bard’s vascular access ports having radiographic markers perceivable by an x‑ray after implantation to indicate whether the port is suitable for “power injection.” The Court concluded that the content of the information conveyed by the claimed markers (i.e., that the access ports are suitable for injection at the claimed pressure and flow rate) is “printed matter,” which is not entitled to patentable weight for purposes of novelty and non-obviousness. The Court held that the “printed matter” doctrine is also applicable to the two-step eligibility framework under the Supreme Court’s decision in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208 (2014). Applying that analysis, the Court determined that, under the first step, each claim as a whole is not solely focused on the ineligible content of the information conveyed, but is also directed to the means of conveying it (i.e., radiographically). Moreover, evidence that the use of radiographically identifiable markings on implantable medical devices was known in the prior art was not sufficient to establish as a matter of law that radiographic marking was routine and conventional, and thus not an “inventive concept,” under Alice step two.
The full opinion is accessible via http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-1756.OPINION.11-10-2020_1683097.pdf