A jury deciding step two must be told the abstract idea, and claims that change when a device transmits are eligible

2026-06-04Fed. Cir.

Ollnova Technologies Ltd. v. ecobee Technologies ULC, Nos. 2025-1045, 2025-1046 (Fed. Cir. June 4, 2026) (precedential) (Chen, J., joined by Cunningham, J., and Stark, J.), affirming in part, dismissing in part, and vacating and remanding a judgment of the United States District Court for the Eastern District of Texas, No. 2:22-cv-00072-JRG (Gilstrap, J.)

Ollnova asserted four patents on wireless building automation against ecobee's smart thermostats, and a jury found infringement of at least one, without saying which, and awarded a lump sum of $11.5 million. The Federal Circuit, in an opinion by Judge Chen joined by Judges Cunningham and Stark, ordered a new trial because a single infringement question covering all four patents was an abuse of discretion. Under Section 101 of Title 35 of the United States Code, it affirmed that claim 1 of United States Patent No. 7,746,887, whose controller polls a sensor only within a polling interval and transmits the most recent reading only during a transmission interval and only when the sensed condition moves outside a predetermined range, is "directed to a specific technology-based improvement in the operation of a network," because the timing constraints and conditional trigger are "a defined technique" rather than a result. It reached the same conclusion for United States Patent No. 8,264,371, which aggregates change-of-value messages and repeats transmission until acknowledged. For United States Patent No. 7,860,495, the district court had held the claims abstract but sent step two to the jury without identifying the abstract idea or instructing that it cannot supply the inventive concept. That was error and not harmless, and on remand the jury "should be instructed as to the abstract idea."

What it changesTwo lessons for software and artificial intelligence portfolios. First, the eligible claims here are rules about when a device samples and when it transmits, and they survived because each claim states the rule rather than the goal. That is the drafting pattern for edge inference, model update scheduling and sensor-triggered transmission: recite the interval, the condition and the action, and explain in the specification which technical constraint, whether bandwidth, power or reliability, each one addresses. Second, a patentee who takes step two to a jury must expect the instruction to name the abstract idea and tell jurors it cannot be the inventive concept, so the expert's account of the inventive concept has to point at claim limitations beyond that idea. Ollnova's expert described the inventive concept in terms that tracked the abstract idea, and the verdict did not hold. Ask the court to fix the abstract idea before trial, which the opinion notes can avoid a retrial.

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Burbage Law is the practice of Jon Burbage, a registered patent attorney. 342 United States patents have issued from applications he wrote; the full list is on the Patents page. More about Jon Burbage.

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