In a precedential opinion, the CAFC, in IOENGINE, LLC v. Ingenico Inc., reversed PTAB's invalidation of claims related to portable data processing devices due to improper application of the Printed Matter Doctrine. Specifically, “Encrypted communications” and “program code” are not claimed for the content they are communicating, therefore they are not “printed matter” and the printed matter doctrine does not apply.
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Exemplary claim:
Claim 2: Code . . . configured to cause a communication to be transmitted to the . . . node
Claim 4: Wherein the communication caused to be transmitted to the . . . node facilitates transmission of encrypted communications from the . . . node to the terminal.“
Holdings:
“We apply a two-step test to determine whether a limitation should be accorded patentable weight under the printed matter doctrine. First we determine whether the limitation in question is directed toward printed matter. A limitation is printed matter only if it claims the content of information. [. . .] Only if the limitation in question is determined to be printed matter do we proceed to the second step, which asks whether the printed matter nevertheless should be given patentable weight. Printed matter is given such weight if the claimed informational content has a function or structural relation to the substrate.”
The fact that there is a communication itself is not content; content is what the communication actually says. Nor is the form of a communication, such as whether the communication is encrypted, considered to be content. Printed matter encompasses what is communicated–the content or information being communicated–rather than the act of a communication itself. [. . .] Because 'encrypted communications' [of claim 4] and 'program code' [of claim 7] are not being claimed here for the content they communicate, they are not printed matter. The inquiry stops there; if the claim element is not printed matter, we need not consider whether it has a functional or structural relation to its substrate.”