The Supreme Court's landmark decision, Alice v. CLS Bank, established new requirements for subject matter eligibility under Section 101 of the Patent Act, 35 U.S.C. §101, for patents involving abstract ideas. Since then, defendants have sought to quickly terminate patent litigations by addressing patentability at the very beginning of the case. To do so, they have increasingly used Rule 12 motions—such as a motion for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)—to request that district courts consider questions of §101 subject matter eligibility from the very beginning of a case—a technique achieving a very high degree of success. In this article, Finnegan attorneys Lionel M. Lavenue, Shaton C. Menzie, and Kara A. Specht review the procedure followed by Judge Gilstrap in the Eastern District of Texas—the judge with the largest patent infringement case docket—on Rule 12 motions based on subject matter eligibility.
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