A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: section-101

In response to early Section 101 motions, plaintiffs often assert that claim construction is necessary before a ruling on patent eligibility can occur. For plaintiffs looking for quick settlements and dismissals, avoiding an early ruling on Section 101 is a win. In most cases, successfully arguing that claim construction is required pushes the timeline out for resolution of Section 101 issues substantially. That is not always the case, however. Judge Stark recently ordered an "expedited Markman proceeding" on terms the plaintiff had identified during Section 101 briefing, short-circuiting the usual process and setting up a possible second round of Section 101 motions.

On Friday, Chief Judge Stark released his opinion summarizing his bench rulings from his most recent Section 101 day. This is how the patents fared:

Content Square v. Quantum Metric, Inc., C.A. No. 20-832-LPS (D. Del.)

In the first case, Content Square, the Court invalidated the claims of 2 of the 5 asserted patents.

Not this kind of web crawling.
Not this kind of web crawling. Michael Anfang, Unsplash

The invalidated patents related to "heat map patents," which relate to displaying heat maps of web browsing data. These include U.S. Patent Nos. 10,063,645 and 10,079,737.

The third patent, which was not invalidated, related to "creating multiple versions of a website to determine users' preferences." Interestingly, the Court held …

Objections to Reports and Recommendations are something like an appeal. The District Judge is tasked with addressing the alleged errors of the Magistrate Judge de novo only to the extent they are "properly objected to." Fed. R. Civ. P. 72(b)(3). Thus, it is the job of the parties to raise objections to an R&R in a procedurally proper way. If they fail to do so, the District Judge is hamstrung to an extent. This outcome was on display in a recent ruling by Judge Andrews, in which both sides failed to properly object to a portion of the Magistrate Judge's R&R, leaving a patent with "serious" validity problems alive (for now).

Wilmington, <a href='#' class='abbreviation' data-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>
Wilmington, DE Andrew Russell, CC BY 2.0

As we noted recently, Chief Judge Stark has a practice of holding "§ 101 days," in which he hears oral argument on a number of § 101 motions all at once, each from a different case. He typically issues decisions from the bench regarding each motion—which is always exciting—and follows up later with a written decision.

At first it seemed that § 101 days tended to be fatal for the patents involved, but more recent hearings have shown otherwise.

On Friday, Chief Judge Stark posted the schedule and public access information for his next § 101 day, set …

Terracotta revetment with a griffin
The Met

Yesterday, Judge Noreika denied an early Section 101 challenge to two patents-in-suit, in light of a factual dispute regarding unconventionality of certain aspects of the claimed invention.

Although plaintiff managed to survive the § 101 motion, it failed to meet the relatively un-demanding standard for pleading direct infringement – a test that would have been satisfied if the plaintiff had simply "identified the . . . accused products and alleged that the accused products met 'each and every element of at least one claim' of the asserted patents, either literally or equivalently." ...

Nearly two years after the first "Section 101 Day" was held before Judge Stark and Judge Burke, Judges in this District continue to hold multi-motion, multi-case, all-day hearings on patent eligibility under 35 U.S.C. § 101.

When Judge Stark launched the hearings in early 2019, he expressed hope that they would make resolving the unending crush of Section 101 motions faster and more efficient. The hope for efficiency seems to have been borne out.

Judge Stark noted in a December 2020 order (see below) that "the Court continues to find that its experimental procedure of addressing multiple Section 101 motions from separate cases in one hearing is an efficient use of judicial resources and a beneficial tool for resolving …

On September 3, 2020, Judge Connolly invalidated five asserted patents as patent ineligible on a single Rule 12 motion. In Sensormatic Electronics, LLC v. Wyze Labs, Inc., C.A. No. 19-1543-CFC, Judge Connolly granted defendant's motion for judgment on the pleadings, invalidating five of seven asserted patents (two of the seven were no longer being asserted).

When mounting a Section 101 challenge, it is tempting to reduce the claimed invention to the broadest abstract concept possible (for example, "communications" or "data transfer"). The Federal Circuit has not given defendants much incentive to be more selective or specific in that regard. However, there are limits, and the defendants in APS Techs. v. Vertex Downhole, Inc., C.A. No. 19-1166-MN found them.

Oil Rig
Oil Rig Worksite Ltd, Unsplash

In a July 29, 2020 order Judge Noreika denied defendants' motion to dismiss because defendants' Section 101 challenge "oversimplified the claim to an improper level of abstraction." Defendants asserted that the claims were directed - at their heart - to "data transmission." Although Judge Noreika expressed some …