A Blog About Intellectual Property Litigation and the District of Delaware

Artist's Rendering of First 101 Day Hearing
Artist's Rendering of First 101 Day Hearing Execution of Mary, Queen of Scots, from "Illustrated London News", William Luson Thomas

It was not so long ago that plaintiffs might enter a § 101 day hearing before Judge Stark with hats in hands, ready to plead for any small mercy. To some, having one's case set for a § 101 day hearing was to know the day and the hour. But that was back in the heady days of early 2019. With two new § 101-day rulings issued by Judge Stark just this week, plaintiffs need no longer dread these (approximately) quarterly events.

Claims of All Three Patents Invalidated At Inaugural § 101 Day

At the inaugural hearing in February 2019, Judges Stark and Burke sat together in judgement on the claims of 3 patents asserted across 3 different sets of cases and issued their rulings from the bench.

All of the asserted claims of all of the patents were invalidated.

At the time, Judge Stark "caution[ed] against reading anything into that." Search & Soc. Media Partners v. Facebook, Inc., No. 17-1120-LPS-CJB, 2019 U.S. Dist. LEXIS 23020, at *25 (D. Del. Feb. 13, 2019). Still, it's hard to imagine a less auspicious start to what would come to be a highlight of the hearing calendar.

The Next 3 Hearings Invalidated Claims from About Half of the Asserted Patents (8 out of 20)

Apparently appreciating the efficiencies of these joint hearings, Judge Stark held three more such § 101 days over the next year with mixed results for plaintiffs:

  • June 2019 - Claims of 3/11 patents invalidated
  • December 2019 - Claims of 3/6 patents invalidated
  • January 2020 - Claims of 2/3 patents invalidated

All told, only 40% of the patents challenged at hearings in this period had claims that were invalidated. This brings our running total up to 11/23 or 48% - less than half!

Judge Stark Issues Rulings on First 2 Post-Pandemic § 101 Days, Invalidating Fewer Claims from Fewer Patents (3 out of 13)

Now joined by Judge Hall, Judge Stark held § 101 days in July and September of this year, once again ruling from the bench as follows:

  • July 2020 - Claims of 2/8 patents invalidated
  • September 2020 - Claims of 1/5 patents invalidated

That's just 23% of the patents involved in these two hearings, bringing the running total of all the hearings down. All told, the Court invalidated claims from only 38% of the patents involved in the various § 101 days.

There is, of course, no way to know if this trend will continue, but its clear that a § 101 day is more than just a funeral for patents.

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