Federal Circuit Affirms Section 101 Rejection of a Pro Se Applicant's Computer-Implemented Bartering Method.

The appeal

The case is In re Wenkman, No. 2026-1424 (Fed. Cir. Oct. 28, 2026) (nonprecedential), an appeal from the Board in Application No. 18/424,833. Mr. Wenkman, of Travelers Rest, South Carolina, represented himself. The examiner rejected claims 1-20 as patent ineligible under 35 U.S.C. 101. The Board affirmed, adopted the examiner's findings, and added an additional ground for rejecting all claims: lack of written description under 35 U.S.C. 112(a). The Board then denied Mr. Wenkman's request for rehearing, and he appealed. The court had jurisdiction under 28 U.S.C. 1295(a)(4)(A).

What the application describes

According to the opinion, the application relates to a computer-implemented method that lets a business enter into barter transactions, and it describes a business bartering groceries and other goods to a customer in exchange for silver or gold. The business uses a computer-implemented program to assign a bartered value, which the specification says is not currency, to a bartered value card, token, or mobile device. The court quoted the specification's statement that "it is NOT the electronically activated physical devices used in the 'claims' (i.e. computer, magnetic strip card, etc.) that are patentable," but the computer-implemented process, and noted that the specification says the method is executed "using a special computer program (not shown)."

What claim 1 recites

The Board designated claim 1 as representative under 37 C.F.R. 41.37(c)(1)(iv), and the court did not disturb that designation. As set out in the opinion (slip op. at 4-7), claim 1 recites a computer-implemented business method for bartering groceries and other goods for silver and gold between a retailer or wholesaler that also sells those goods for currency and a customer who presents silver or gold coins, tokens, bars, or bills of at least 90 percent silver or gold content. After inspecting the metal, the business uses a computer-implemented program to determine a barter value that the customer accepts or rejects, and it tells the customer that the bartered value is not money or currency. The business then electronically assigns the bartered value to a card, token, or mobile device that has a unique identifying code and communicates with the business's closed-loop electronic communications network, with the program designed so that the bartered value is not exposed to any payment service provider, bank, or financial institution. At checkout, the business debits the bartered value for the selected goods by scanning or reading the card, token, or device.

Step one: bartering is a fundamental economic practice

Reviewing eligibility de novo, the court agreed with the Board that the claim is directed to the abstract idea of organizing human activity in the context of a fundamental economic practice, bartering. "The claim describes using a computer to conduct a bartering process," the court wrote. It relied on Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014), Bilski v. Kappos, 561 U.S. 593 (2010), cxLoyalty, Inc. v. Maritz Holdings Inc., 986 F.3d 1367 (Fed. Cir. 2021), and Smart Systems Innovations, LLC v. Chicago Transit Authority, 873 F.3d 1364 (Fed. Cir. 2017).

Step two: generic devices performing basic functions

At step two, the court held that the claim elements invoke a generic computer and an electronically activated card, mobile device, or tablet to perform basic computer functions such as data receipt, transmission, processing, and display, which is insufficient to provide an inventive concept. It quoted GoTV Streaming, LLC v. Netflix, Inc., 166 F.4th 1053, 1067 (Fed. Cir. 2026), that it is not sufficient "for a claim to use functional, result-focused language or to encompass ordinary computers and networks to perform their ordinary functions in carrying out an abstract idea." Because it affirmed on section 101, the court did not reach Mr. Wenkman's challenge to the Board's written description ruling.

Practice pointers

The court quoted GoTV for the point that using ordinary computers and networks to perform their ordinary functions does not supply an inventive concept, "even when narrowed to a particular use or environment (such as particular subject matter), without going further to require a specific implementation to improve how those functions are carried out." In finding that the claim elements invoke generic devices for basic functions, the court also pointed to the specification's own statement that the electronically activated physical devices in the claims are not what is patentable.

What to watch next

Watch for any petition for rehearing.