No “101 Spring”: 101 Dismissal in Rothschild cases affirmed

A few weeks after Judge Gilstrap’s order in September 2015 dismissing the 101 defendant eDekka litigation on 101 grounds, Magistrate Judge Love recommended granting a similar motion in the Rothschild Location Technologies cases on January 4, 2016 – a recommendation that Judge Schroeder adopted several weeks later.  That litigation originally involved around three dozen defendants. Judge Schroeder recently denied the plaintiff’s motion for reconsideration in light of the “101 spring” line of cases from the Federal Circuit in 2016 (Enfish et al.) which did not affirm district courts’ decisions to dismiss cases on 101 grounds. In his opinion, Judge Schroeder

101 Motion Granted in Financial Services Case

In a recent opinion resolving a 101 defense via a motion to dismiss, an EDTX court noted that “Although procedure is often slighted in the context of § 101 motions, the Court does not take invalidating a patent at the pleading stage lightly.” Nonetheless, it concluded that the motion was well-taken and recommending invalidating the asserted claims. It was a dark and stormy night at the courthouse when 

Recent 101 Decisions from the EDTX

In a development that sounds suspiciously like someone who’s writing computer games for the Nintendo Wii is also following patent litigation, the  2013 game The Wonderful 101 contains a principal character named “Alice”, who is the main operator of the game heroes’ state of the art warship.  Here’s what we are told about Alice.

“Talented in ship controls and cannon warfare, the daring maneuvers Alice takes to save the ship from crisis often leave the rest of the team speechless. . . . She never says more than is absolutely required and her expression never reveals her true emotions, which has the unfortunate side-effect of making her look hard to approach to others.”

Well if that isn’t a good description of the caselaw on patentable subject matter, I don’t know what is.  At least we now have an avatar for Alice motions.  (Note to self: see if Shipping & Transit has a app out called Inequitable Conductors).  

There have been a number recent cases on 101 motions from EDTX courts, and I wanted to review them today, so be looking for posts as the day goes on.

EDTX filings down 29% in 2017 – on pace to drop 53% from 2015 peak

I am remiss in not checking patent filing statistics after the first month of the year, but the good news is that I now have almost twice as much filing history to rely on.

As readers know, EDTX patent filings in 2016 were down 34% – meaning over 800 cases – from 2015’s peak filings.

It appears that to date there have been 167 patent cases filed in EDTX in 2017, which annualizes to a 29% drop over 2016 filing levels – a drop of nearly 500 more cases over the course of the year.  If this holds, 2017 will see filings back at 2012 levels of around 1,200 cases a year, which would be a 53% drop – approximately 1,300 cases – from the 2015 peak.

Of course early filings are a statistically imprecise measure, but they are good at indicating trends.  For example this time last year they were down 47% and eventually ended the year down 34%.

Shift in Number of Parties (read “Type of Filer”)

And here’s another important trend.  In 2015 there were 3.35 parties per case filed in EDTX – that number has now dropped to 2.48 parties per case filed, perhaps reflecting what I’ve written about frequently over the last year – that the reduction is filings is coming from the ranks of the “bulk filers”, i.e. plaintiffs that sue multiple defendants on the same patents.  The trend is clear anecdotally when you look at the list of top filers (lawyers and plaintiffs) from 2015 and see them thin dramatically in EDTX in 2016, but we’re now seeing it at the macro level.  Of course the change is nowhere near that compared to pre-AIA numbers, where the practice of including unrelated defendants in cases resulted in far higher numbers (9.81 in 2010 in EDTX), but it may reflect this change in the makeup of the EDTX patent docket that I am seeing on the ground.

Perhaps supporting this is the fact that this shift doesn’t appear to be occurring in either the District of Delaware (3.67 to 3.86) or the Northern District of California (3.58 to 3.8), both of which saw small increases in the parties per case filed metric, but didn’t (at least anecdotally) see a change in the general makeup that we saw in the EDTX.