No provision of the Patent Act has been more frequently litigated over the last several years than 35 U.S.C. § 101. After not having decided a § 101 case in nearly a decade, the Supreme Court issued four § 101 decisions in as many years, most recently articulating a test for determining whether computer system claims are patent eligible in its 2014 Alice Corp. Pty. v. CLS Bank International decision.1 Since then, the Federal Circuit has decided more than fifty cases involving § 101, many of which were appeals from district court actions where parties raised § 101 as a defense to infringement. And in many of those cases, courts resolved § 101 challenges at the pleading stage on either a Rule 12(b)(6) or Rule 12(c) motion. Indeed, more than 56% of such motions have been granted or granted in part, indicating courts’ willingness to adjudicate § 101 at the outset of a case.2 Thus, there is no doubt that, in many cases, § 101 is properly resolved by a judge at the pleading stage or on summary judgment.

Originally published in The Federal Circuit Bar Journal - December, 2017.