We've written several times about Judge Stark's practice of holding "101 days." For the uninitiated, these are day-long hearings in which the court hears argument on multiple 101 motions from unrelated cases in a single, combined hearing. He has continued this practice throughout the pandemic, holding telephonic 101 days roughly once a quarter since July 2020.
He held another one last Friday, and he issued his written rulings earlier today. This time, he addressed three 12(b)(6) motions covering a total of four patents.
F45 Training Pty Ltd. v. Body Fit Training USA Inc. (C.A. No. 20-1194-LPS)
The claims were "directed to the abstract idea of storing, sending, and retrieving information over a network." Judge Stark found that this "abstract idea lies at the heart of the [representative] claim[,]" but concluded that the defendant failed step two of Alice because the plaintiff "plausibly contends that the claim, including its specific physical structure and function, amounts to something more than the practice of an abstract idea . . . ."
LoganTree LP v. Fossil Group, Inc. (C.A. No. 21-385-LPS)
Judge Stark found that the claims were "directed to an improvement of physical movement monitoring devices[,]" rejecting the defendant's contention "that the representative claim is directed to the abstract idea of tracking and monitoring movement . . . ." And although the defendant tried to offer "a new proposed abstract idea" at oral argument, Judge Stark was not persuaded:
This new proposal does not alter my conclusion . . . because it's not correct that the only oversimplification I have found relates to the lack of reference to the physical device.
But also, I should add that in fairness to Plaintiff as well as the Court, there has to come a time in which . . . the defendant is no longer permitted to alter what it is arguing is the abstract idea to which the claim is directed. Moreover, the shifting in articulation of the purported abstract idea itself casts doubt on whether the claim, as a matter of law, truly is directed to an abstract idea. And here, I think it is noteworthy that in the briefing, the defendant articulated the abstract idea in different ways, and then again . . . offered a new way today.
Relatedly, I think this case illustrates the potential perils of continuously shifting the articulation of what the purported abstract idea is. Fossil's best argument at step two is that the claim amounts to nothing more than the practice of the abstract idea, but for me to evaluate that argument, I first must know what the abstract idea is. So a "shifting sand[s]" approach to articulating the abstract idea makes [the] step two analysis difficult, if not impossible.
FiscalNote, Inc. v. Quorum Analytics, Inc. (C.A. No. 20-1736-LPS)
In this case, the defendant fared much better. As an initial matter, although the plaintiff contended that the 101 motion could not be resolved without engaging in claim construction, Judge Stark found that the plaintiff "waived its opportunity to argue that claim construction is necessary . . . by not providing the Court, in its answering brief, a proposed construction and at least some explanation as to what difference adoption of that proposed construction would make."
He then agreed with the defendant "that the representative claim of the [first challenged] patent is directed to the abstract idea of collecting, analyzing, and displaying policymaker data" and "that the representative claim of the [second] patent is directed to the abstract idea of collecting and storing milestone data for different locales and then presenting that data using standardized terminology."
On step two, he concluded that the claims "at bottom are just taking longstanding human behavior and doing [it] with conventional and unspecified and undisclosed computer components and software. This is not patent eligible subject matter."
Total Score: 2-2
So there you have it—two patents fall, while two live to see another day. The full opinion is embedded below if you'd like to give it a read.
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