- U.S Court of Appeals for the Federal Circuit has refused to rehear a decision invalidating three EV patents owned by Hong Kong-based Thunder Power New Energy Vehicle Development Co., Ltd.
- The patents were previously asserted against Byton North America Corp., a subsidiary of another Chinese-based EV company called Nanjing Byton.
The U.S Court of Appeals for the Federal Circuit last month refused to rehear an appeal brought by the Hong Kong-based electric vehicle (EV) company Thunder Power New Energy Vehicle Development Co., Ltd. In refusing the rehearing, the Federal Circuit continued to affirm the findings of a lower court that three EV patents owned by Thunder Power are directed to patent ineligible subject matter and are therefore invalid. The Thunder Power patents appear headed for cancellation – the same fate as four previously invalidated EV patents owned by ChargePoint (see our earlier coverage of the ChargePoint patents here).
Thunder Power had sued Byton North America Corp. in a federal court in Northern California for allegedly infringing three of Thunder Power’s U.S. patents.  Two of those patents are directed to displaying information on the dashboard of a vehicle, while the other patent claimed as an invention a vehicle operating system that identifies safety risks associated with inattentive or distracted driving.
Byton North America is a subsidiary of Nanjing Byton, an EV company based in China with an electric SUV called the M-Byte set to launch this month in China and later this year in the U.S. Byton North America’s operations in the United States allow it to be sued in federal court, and Byton’s importation of concept cars into the United States formed the basis of Thunder Power’s infringement allegations.
Byton responded to Thunder Power’s May 2018 lawsuit by asking the California court to dismiss the case on the grounds that the asserted patents were invalid because the inventions claimed in the asserted patents were ineligible for patent protection. Under U.S. patent law, “laws of nature, natural phenomena, and abstract ideas” may not be patented. Any patent granted by the U.S. Patent and Trademark Office but later found to be directed to one of these ineligible subject matters is invalid and cannot be enforced against other parties. 
After briefing by the parties, the California court issued a decision in October 2018 agreeing with Byton that the Thunder Power patents were directed to ineligible subject matter and therefore invalid. In evaluating the asserted claims, the California court discounted any hardware elements that are recited to be used in their known and conventional manner and then looked to see what was left.
For example, Claim 1 of U.S. Patent No. 9,547,373 is directed to a vehicle operating system that identifies safety risks associated with inattentive or distracted driving. The claim recites:
1. A vehicle operating system for operating a vehicle including a driving seat for a vehicle driver and at least one passenger seat for passengers, the vehicle operating system comprising:
camera devices for capturing at least one of images of gestures of the driver and images of gestures of a passenger;
a storage device for storing operating signals corresponding to gesture actions;
a processing device configured to:
control the camera devices to capture gesture action images of the driver and passenger simultaneously or substantially simultaneously,
convert the captured gesture action images into corresponding operating signals according to the operating signals corresponding to the gesture actions stored in the storage device,
determine a first operational signal is from a gesture action image for the driver and determine a second operational signal is from a gesture action image for the passenger, the first and second operational signals both for operating a same component of the vehicle,
determine whether the first operation signal is consistent with the second operation signal,
select the first operational signal as the operating signal and discard the second operational signal by virtue of the first operational signal being from the driver in response to the determination that first operation signal is not consistent with the second operation signal, and
send out the operating signals; and
execution devices configured to receive the operating signals sent by the processing device, and to execute operations corresponding to the operating signals.
In the California court’s analysis, the hardware elements of “camera devices,” “a storage device,” and “a processing device” are each well-known components of a “vehicle operating system” and are used in a known, conventional manner. After discounting any patentability from those elements, the claim merely recites “collecting information, analyzing it, and displaying certain results of the collection and analysis.” This type of information processing is commonly found to be a mere abstract idea that is not patentable.
Since the court found that all three asserted Thunder Power patents claim nothing more than abstract ideas, the court dismissed the case. Thunder Power then appealed to the Federal Circuit, where a three-judge panel summarily affirmed the California court’s decision. Last month the Federal Circuit refused to rehear that decision. Although Thunder Power may petition the Supreme Court to hear their case, the decision by the Federal Circuit means that Thunder Power’s patents are likely to be cancelled.
 U.S. Patent Nos. 9,547,373; 9,561,724; and 9,563,329.
 See, for example, the 2014 Supreme Court case of Alice Corp. v. CLS Bank International.