For the first week of April, AliceStorm continues unabated, and though the indices are down, the damage spreads. Not surprisingly, the Eastern District of Texas appears to have become the eye of the storm--that place of calm in the midst of the swirling onslaught.  

April 10, 2015:  First off, PTAB continues to wander through the galaxy as the Imperial CBM Death Star.  Four for four on new CBM institutions on 101 and two more final decisions finding patent ineligibility.  The 100% kill rate continues. Darth Vader would be pleased. 

Five district court decisions on motions to dismiss/pleadings and one Federal Circuit case--outcome predetermined. In DietGoal Innovations LLC v. Bravo Media LLC, Federal Circuit affirmed per curiam the invalidity of DietGoal's patents on various meal planning user interfaces.  The real question is not the court's opinion or the merits of this case.  No, the real question is this:  Why does it seem that Dyk, Mayer, Reyna (this panel) along with Lourie, Hughes and Taranto get most of the 101 cases?  The distribution of appeals is supposedly random, but that does not seem how it plays out in fact.   

At the district courts, the action was split.  Finding invalidity on a motions to dismiss were Carfax, Inc. v. Red Mountain Techs. and OpenTV, Inc. v. Apple, Inc.  On the other hand, the courts denied such motions in Nomadix, Inc. v. Hospitality Core Servs, Presqriber v. AO Capital Partners, and Content Guard Holdings, Inc. v. Google Inc.

The big picture here is this:  when it comes to patent eligibility some courts take the position that the facts and technology underlying the claims does not really matter, or that the presumption of validity does not apply; other courts stand on the presumption and want to see the facts.  In the former camp the court in Carfax said it this way: "At the pleading stage, the Court derives "clear and convincing evidence" of a patent's invalidity from the patent claims. See Alice at 2359 (explaining that at Alice Step One the court must evaluate the claims "[o]n their face" to determine to which "concept" the claims a re "drawn" and, at Alice Step Two, the Court must evaluate the invention as described by the claims.)"  But the Alice Court's reference here to "claims on their face" did not mean that claim construction or the meaning of the claim was not relevant.  It meant that you look to the actual language of the claims--not some derivative gloss.   The court in OpenTV decided that the presumption of validity does not apply:  "But the Federal Circuit has made it clear that “while a presumption of validity attaches in many contexts, no equivalent presumption of eligibility applies in the section 101 calculus.” Ultramercial, 772 F.3d at 721 (Mayer, J., concurring) (explaining that “[a]lthough the Supreme Court has taken up several section 101 cases in recent years, it has never mentioned—much less applied—any presumption of eligibility”).  Of course, the issue of the presumption of validity has never been before the Supreme Court, so it's not surprising that "it has never mentioned" it.  

More importantly, Mayer's statement in concurrence is expressly contradicted by the plurality in CLS v. Alice:  "Because we believe the presumption of validity applies to all challenges to patentability, including those under Section 101 and the exceptions thereto, we find that any attack on an issued patent based on a challenge to the eligibility of the subject matter must be proven by clear and convincing evidence. Cf. Microsoft, 131 S. Ct. at 2242 ("We consider whether § 282 requires an invalidity defense to be proved by clear and convincing evidence. We hold that it does."). We believe, moreover, that application of this presumption and its attendant evidentiary burden is consistent with the Supreme Court's admonition to cabin the judicially created exceptions to Section 101 discussed above."

Presqriber, Content Guard and Nomadix represent the other view.  In Nomadix, the court supported the presumption of validity and stated that “it will be rare that a patent infringement suit can be dismissed at the pleading stage for lack of patentable subject matter."  In Presqriber, the court held that claim construction was necessary to determine with "any certainty what the claims encompass" because of the "very different portrayals of the claimed invention" by the parties.  In Content Guard, the court stated that the arguments on patent ineligibility were "fundamentally intertwined with disputes regarding the proper construction of terms that the Court has now construed," and that the court's construction was not fully considered by the parties in their arguments.