Stroock Special Bulletin
"H&R Block" and "Every Penny Counts" Cases Ask “Where’s the Machine?”
Harkening back to those famous 1984 Wendy’s commercials, Jackson Hewitt and Bank of America are asking “where’s the machine?” in relation to financial “business method” patent claims asserted against them in two separate patent infringement lawsuits. The two cases, H&R Block Tax Svcs. LLC v. Jackson Hewitt Tax Svc. Inc., and Every Penny Counts, Inc., v. Bank of America Corp., which are currently winding their way through the district courts, involve challenges to the validity of the patent at issue on the ground that the claims are not eligible for patent protection under the “machine-or-transformation” test set forth last October in the Federal Circuit’s seminal decision in In re Bilski. The H&R Block and Every Penny Counts cases are important to watch because they involve patents that can be broadly characterized as methods of doing business – the much maligned type of patent made famous by the State Street decision in 1998 and by Amazon.com’s “1-Click” patent asserted against Barnesandnoble.com soon thereafter. This Stroock Special Bulletin looks at these cases and the lessons that may be learned in relation to the patentability of process claims.