Will Berkheimer Chill Alice-Based Rule Motions to Dismiss?

A district court faced with a defendant’s motion to dismiss has ordered supplemental briefing because “Berkheimer v. HP, Inc. (Fed. Cir. Feb. 8, 2018)] may impact the analysis to be applied at the motion to dismiss stage under the second step of the standard set forth in Alice Corp. Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014).”  Pace Anti-Piracy, Inc. v. Inside Secure, No.17-cv-05860-HSG (N.D. Cal. March 16, 2018).  Of course, simply ordering supplemental briefing does not mean that a court will find that fact questions preclude deciding the patent-eligibility question at the pleadings stage.  But the fact that this court and others are heeding Berkheimer as a potentially significant turn in the law – and one that would impede a court’s ability to hold patents invalid under 35 U.S.C. § 101 – is a trend worth noting, and watching.

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