Covered Business Method Review (CBM) is an administrative review procedure introduced by the America Invents Act that, like Post Grant Review and Inter Partes Review, offers a quicker and less costly alternative to challenging patent validity in civil litigation. Unlike standard PGR and IPR proceedings, however, CBM allows challengers to request cancellation of claims in patents broadly claiming a business method. Unlike standard PGR and IPR, the transitional CBM program has no timing limit for filing, the Board can review all claims in a patent, and estoppel is limited to those grounds actually raised in the proceeding.
To qualify for a CBM review, a patent must claim a "covered business method"—which the USPTO defines as a patent claiming an "invention that is used in the practice, administration or management of a financial product or service and does not claim a technological invention."8 Despite this clear regulatory definition, the PTAB has struggled to define the term, with varying application and focus on differing factors from case to case.
Until recently, many practitioners believed that all patents that include any claim directed to a business method could be challenged in CBM. But as CBM’s sunset date—September 16, 2020—approaches, that assumption appears to be increasingly inaccurate. In its recent decision, Qualtrics v. OpinionLab, the PTAB denied institution of a CBM review in a patent claiming an algorithm for soliciting feedback from website users, finding that the patent did not claim a covered business method and thus did not meet the eligibility requirements for the proceeding.
