In any patent dispute, the strength of the patent still matters. But increasingly, it is not the only thing that matters—or even, in some cases, the thing that matters most. That means where a patent dispute takes place cannot be a tactical afterthought or viewed as a choice of federal district courts in the United States alone. This is true today more than ever because despite patents ostensibly being property—at least according to the Patent Act—which tribunal and which judges make the ultimate decisions affecting the patent often matter most of all because patents and patent enforcement have become driven by ideology and the type of fervor normally reserved highly emotionally charged discussions, like religion and politics.

The mythology surrounding the act of invention tends to concentrate on the breakthrough moment. There is a flash of insight, a sketch is made on a cocktail napkin, the prototype is assembled in a garage to prove the brilliance of the concept. Unfortunately, commercial markets are considerably less romantic. They do not reward ideas merely because they are clever, patentable or even technically superior. They reward products that work, solve a problem customers recognize, can be manufactured at an economically sustainable price and generate an acceptable return for whoever assumes the risk of bringing them to market.

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a decision today in Dental Monitoring SAS v. Align Technology, Inc., affirming a district court ruling that found several patent claims covering deep learning based dental image analysis invalid as directed to ineligible subject matter under Section 101. Dental Monitoring SAS owns U.S. Patent 11,049,248 and U.S. Patent 10,755,409, both of which relate to dental arch image analysis. The ‘248 patent covers “a method for assessing the shape of an orthodontic aligner using a deep learning device,” while the ‘409 patent covers a method for acquiring and analyzing an image of a dental arch using the same type of device.