Given the liberal amendment standard in federal court, it is not surprising that plaintiffs faced with § 101 challenges to their asserted patents may attempt to introduce factual issues through amended pleadings to avoid a dismissal.
Judge Connolly recently permitted the plaintiff in the consolidated Realtime Data litigation to amend its complaints after he had twice found plaintiff's patents (involving data compression) invalid under § 101. RealTime Data LLC v. Array Networks Inc., C.A. No. 17-800-CFC.
But the amendments were not enough to save plaintiff's patents, and Judge Connolly walked through the amendments to explain why.
First, the amended complaints asserted that certain claims were not representative of others, and that different limitations "must be considered separately for for the purposes of § 101." But these statements were deemed "conclusory," and in any event, the plaintiff failed to "explain why these limitations are relevant to subject-matter eligibility."
Second, he found that all but one of the "new" claim construction positions were already before the Court, and the remaining proposal (to construe "data accelerator" as "hardware or software with one or more compression ...