It was not so long ago that plaintiffs might enter a § 101 day hearing before Judge Stark with hats in hands, ready to plead for any small mercy. To some, having one's case set for a § 101 day hearing was to know the day and the hour. But that was back in the heady days of early 2019. With two new § 101-day rulings issued by Judge Stark just this week, plaintiffs need no longer dread these (approximately) quarterly events.
Claims of All Three Patents Invalidated At Inaugural § 101 Day
At the inaugural hearing in February 2019, Judges Stark and Burke sat together in judgement on the claims of 3 patents asserted across 3 different sets of cases and issued their rulings from the bench.
All of the asserted claims of all of the patents were invalidated.
At the time, Judge Stark "caution[ed] against reading anything into that." Search & Soc. Media Partners v. Facebook, Inc., No. 17-1120-LPS-CJB, 2019 U.S. Dist. LEXIS 23020, at *25 (D. Del. Feb. 13, 2019). Still, it's hard to imagine a less auspicious start to what would come to be a highlight of the hearing calendar.
The Next 3 Hearings Invalidated Claims from About Half of the Asserted Patents (8 out of 20)
Apparently appreciating the efficiencies of these joint hearings, Judge Stark held three more such § 101 days over the next year with mixed results for plaintiffs:
- June 2019 - Claims of 3/11 patents invalidated
- December 2019 - Claims of 3/6 patents invalidated
- January 2020 - Claims of 2/3 patents invalidated
All told, only 40% of the patents challenged at hearings in this period had claims that were invalidated. This brings our running total up to 11/23 or 48% - less than half!
Judge Stark Issues Rulings on First 2 Post-Pandemic § 101 Days, Invalidating Fewer Claims from Fewer Patents (3 out of 13)
Now joined by Judge Hall, Judge Stark held § 101 days in July and September of this year, once again ruling from the bench as follows:
- July 2020 - Claims of 2/8 patents invalidated
- September 2020 - Claims of 1/5 patents invalidated
That's just 23% of the patents involved in these two hearings, bringing the running total of all the hearings down. All told, the Court invalidated claims from only 38% of the patents involved in the various § 101 days.
There is, of course, no way to know if this trend will continue, but its clear that a § 101 day is more than just a funeral for patents.
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