Meanwhile, only a few blocks from the Dr Pepper Museum in Waco, Judge Albright is reiterating his policy on section 101 motions prior to the opening of fact discovery.
In this order denying reconsideration, Judge Albright explains why personal jurisdiction is present in this case, and the 101 challenge is for another day.
Last week a Marshall jury found by clear and convincing evidence that, from the perspective of a person of ordinary skill in the art, the asserted claims only involved activities that were well-understood, routine, and
conventional as of the relevant date. But why were they asked this?
Well, that was quick. The defendant’s motion to dismiss under section 101 was denied seven days before the response was due with a direction to refile after the Markman. (Apologies to Wacoans for the crude ALICO building).
Today’s Law360 article by Matthew Bultman on Judge Gilstrap’s new standing order requiring subject matter eligibility contentions is a good read. I wanted to highlight a few of the comments.
For right at 20 years, patent practitioners nationwide have been used to providing infringement and invalidity contentions. Now in what may be a nationwide first, the EDTX is rolling out a third set of contentions – subject matter eligibility.
This order was just issued in a case that is fast approaching trial. In it, Judge Gilstrap granted two Section 101 motions with respect to numerous claims of three of the four patents asserted in the case, but denied it as to five claims across two of the patents, and provided additional instructions regarding how the remaining claims would be handled.
I’m over the river in Oklahoma today at the EDTX bench bar planning meeting, but that’s no excuse not to post on another detailed order from Franklin Avenue – Judge Albright’s third on patentable subject matter.
I thought superdetailing the 1/200 CSM and LM for my Apollo 11 Saturn V was painstaking – until I read the attached 32 pages of findings of fact and conclusions of law on a defendant’s assertion that four claims were invalid as being directed toward ineligible subject matter. The Court concluded that one claim was invalid, but the other three were not. If you’re interested in detailed Section 101 analysis – this is the order you want. On the other hand, if you’re interested in scratchbuilt models of NASA hardware … I highly recommend you look into golf or fishing instead.
Following the addition of U.S. District Judge Jeremy Kernodle to the Eastern District of Texas bench late last year, most of the Tyler docket, including this case, was reassigned from Judge Gilstrap and Judge Schroeder to Judge Kernodle. Judge Kernodle just entered an order denying the defendant’s renewed motion to dismiss for failure to state a claim which argued that the patents in suit claimed ineligible subject matter.