Federal Circuit Finds Claims Directed to Protecting Against Malware Patent Eligible

In Finjan, Inc. v. Blue Coat Systems, Inc., No. 2016-2520 (Fed. Cir. Jan. 10, 2018), the Federal Circuit reviewed Finjan’s assertion of two patents related to methods for protecting against malware.  The Court (1) affirmed the finding that U.S. Patent No. 6,154,844 (“the ’844 patent”) was patentable under 35 U.S.C. § 101, (2) reversed the district court’s denial of JMOL of non-infringement as to U.S. Patent No. 6,965,968 (“the ’968 patent”), (3) vacated the damages award of the ’968 patent, and (4) remanded the ’844 patent’s damage award, finding that the district court failed to appropriate damages to the infringing functionality.

Examining subject matter eligibility, the Federal Circuit concluded that the ’844 patent was not directed to an abstract idea because it went beyond traditional virus-scanning methods.  Specifically, the ’844 patent claims a method of analyzing previously unknown code to determine whether it is malware, whereas traditional “code-matching” virus scanning screened for previously-identified suspicious code.  The Court also rejected Blue Coat’s argument that the asserted claims merely recited results and failed to specify how to attain those results, finding that the ’844 patent recited specific steps that accomplished the desired results.  Concluding that the asserted claims were not directed to an abstract idea, the Court affirmed the ’844 patent as patent eligible.