In a making a motion to dismiss for ineligibility under § 101, the moving party often seeks an ineligibility finding for all claims by attacking a single independent claim and arguing that it is "representative" of the others.

This can be a powerful briefing technique, as it avoids a repetitive slog through multiple asserted claims. Beyond that, it has the practical effect of shifting the burden to the patentee—to some extent—to show that the other asserted claims are different.

A short opinion yesterday by Judge Andrews, however, shows one downside of the representative-claim approach on a § 101 motion to dismiss. If you lose the argument …

Last week, in deciding a renewed motion to stay pending a § 101 motion to dismiss, Judge Burke commented on the likelihood of success of such motions:

The Court, having reviewed the parties' letters relating to Defendant's request to renew its motion to stay, . . . hereby ORDERS that the request is DENIED. . . . [I]n light of the circumstances here (including the statistical unlikelihood of prevailing on a Section 101 motion to dismiss as to each of the four separate patents−in−suit), the Court concludes a stay is not warranted.

Defendant had renewed the motion to stay after Judge Burke denied it in late April. That transcript was …

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 ...

Magistrate Judge Hall issued a § 101 R&R today in Rideshare Displays, Inc. v. Lyft, Inc., C.A. No. 20-1629-RGA-JLH (D. Del.), recommending denial of defendant Lyft's motion to dismiss based on § 101.

The Court found that the patent was not directed to an abstract idea—though it noted that it was a close call—and that, regardless, the invention contained an inventive concept under Step 2 of Alice.

We've all read about dozens (or more) of § 101 opinions over the last few years, but here are a few points of interest from Judge Hall's opinion:

• Judge Hall closely examined the representativeness of the alleged representative claim, and rejected it as unrepresentative. Choose …

We've written several times about Judge Stark's practice of holding "101 days." For the uninitiated, these are day-long hearings in which the court hears argument on multiple 101 motions from unrelated cases in a single, combined hearing. He has continued this practice throughout the pandemic, holding telephonic 101 days roughly once a quarter since July 2020.

He held another one last Friday, and he issued his written rulings earlier today. This time, he addressed three 12(b)(6) motions covering a total of four patents.

F45 Training Pty Ltd. v. Body Fit Training USA Inc. (C.A. No. 20-1194-LPS)

The claims were "directed to the abstract idea of storing, sending, and retrieving information over a network." Judge Stark found that this …

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.

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 …

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 …

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." ...

Judge Noreika issued an opinion today denying a § 101 motion on a patent that covers delivering GPS navigation information to a vehicle in a "short burst."

As to Alice step 1, the Court found that the claims were "do it on a computer" claims directed to the abstract idea of sending and receiving navigation data:

[A]t step 1, claim 1 seems focused on using computers to perform a human activity more efficiently.

At step 2, however, the Court found that the patent's bare-bones specification saved it from § 101—it's hard to find that any particular solution was conventional at the § 101 motion-to-dismiss stage when the specification simply does not discuss the prior …

Today, Judge Connolly held ineligible a patent directed to "teleorthodontics," i.e., a business method for practicing orthodontics remotely through the use of 3D scans of a patients' mouth.

The outcome is not all that unusual—Judge Connolly characterized the patents as essentially "do it with a computer" patents for orthodontics, where the patent claims performing a traditionally offline activity remotely using conventional computers and commercially available 3D scanners.

And, as the Court noted, other courts have held telehealth business method patents ineligible under § 101. Here, according to the Court, the patents at issue simply applied available commercial technology to the abstract idea of connecting patients and orthodontists …