More Redshirts for 101 Motions

2017 has been a golden year for 101 motions in the Eastern District of Texas, with the reported grant rate – at least for the six month period from last fall through this spring – hovering at 75%, compared to 18% in Delaware.  It’s even triple the 25% grant rate during the same period in the Northern District of Texas, according to the below table from Bilksiblog.com.  Last week saw another negative data point on 101 motions for plaintiffs, as Judge Gilstrap granted a 101 motion on one patent – and on a claim that the PTAB had declined to institute review on – 45 days after the motion was filed, and stayed the case as to several others pending PTAB proceedings.

Cases Stayed, 101 Motions Granted

Earlier today I posted about the situation in which a plaintiff files a patent suit, motions to dismiss (often arguing lack of patentable subject matter under Section 101) are filed, and the cases are dismissed before the motions are resolved. This litigation provides an example of this that later nonetheless resulted in a dismissal on the merits of 101 motions, but also illustrates several other things, including filing trends from 2015-to pre-TCH 2017 as bulk filer cases dropped off, as well as changes in case management locally – against as the bulk filings dropped from 2015 levels.

Clash of the 101 Motions: Motion to Dismiss Claims Versus Motion for Summary Judgment as to 101 Defense

Although most 101 defenses are raised via motions to dismiss under 12(b)(6), a few are brought under 12(c), and more than a few are either filed in or converted to the context of summary judgment.  But this case raises an interesting twist with the defendant seeking dismissal on 12(b)(6) grounds and the plaintiff seeking summary judgment that the 101 defense is without merit.  So let’s see how that worked out for them.

EDTX Grant Rate on 101 Motions Up to 75%; Del/ND Cal. 101 Grant Rate Drops to 23%

Fenwick & West’s BilskiBlog had a good summary of the state of 101 caselaw as of the end of Q1 2017 yesterday.  Most notable to me was their observation of the pronounced change in grant rates for 101 motions in patent-heavy district in the last six months.

They compared grant rates from mid-2014 through the third quarter of 2016, and then over the past six months, uncovering two significant trends.  First, the three top districts in terms of rulings that are not the EDTX had grant rates from 65-74%, but those rates dropped dramatically to 18-40% in the last six months.  Excluding CD Cal and only looking at the double digit districts, the rate is 18-25%.

In contrast to its 31.9% grant rate from 2014-2016, however, the EDTX grant rate for 101 motions the last six months has increased to 75%, with 12 of 16 motions being granted.  That is over three times the grant rate in D Del and ND Cal, which are currently at 23%.

The reason for the spike appears to be a batch of grants in March 2017, but the post recognizes that the overall national trend is a downward one nonetheless.