Last week, in deciding a renewed motion to stay pending a § 101 motion to dismiss, Judge Burke commented on the likelihood of success of such motions:
The Court, having reviewed the parties' letters relating to Defendant's request to renew its motion to stay, . . . hereby ORDERS that the request is DENIED. . . . [I]n light of the circumstances here (including the statistical unlikelihood of prevailing on a Section 101 motion to dismiss as to each of the four separate patents−in−suit), the Court concludes a stay is not warranted.
Defendant had renewed the motion to stay after Judge Burke denied it in late April. That transcript was made available on the docket for the first time when defendant filed its renewed motion, and includes some interesting commentary about post-Berkheimer § 101 motions:
There's also the outcome, because we're dealing with four patents with at least some different arguments as to 101 here, that some patents may survive even if others didn't. And so for that reason alone, I think, you know, the idea that, you know, four patents case, all four patents are likely to be found ineligible may be a little bit of an uphill climb for the defendant. I say that's even more the case, though, in light of the Court's experience. I don't really think the district's experience writ large and probably the nation's experience in terms of judiciary 101 motions at the pleading stage over the last year or two as compared to the early stages post Alice. I don't think you could deny that in recent years, particularly post B[e]rkheimer, the reality is that fewer motions to dismiss are being granted in their entirety, especially in cases involving multiple patents just as a statistical matter. I know in my own cases for sure. Although it is possible for me to rule that a motion to dismiss on 101 grounds is well taken at the pleading stage. I did it recently in a case. The reality is that the last 10 such 101 motions at the pleading stage, the large, large majority of those ultimately resulted in a decision not to find the patents ineligible at least at that stage. Often it's because there's a potential fact issue and the decision is that the motion should be or could be re-filed at the summary judgment stage.
While the transcript is from back in April, the fact that Judge Burke denied the renewed motion to stay on basically the same grounds—citing the statistical unlikelihood of success—shows that his views have probably held steady.
In the transcript, Judge Burke also pointed out that if the motions are more frequently denied, it is harder to justify a stay:
I'm saying the reality is we're in a much different place than we were years ago in terms of likely outcomes of motion to dismiss on 101 grounds at the pleading stage . . . . Just on average with the facts of record, the most likely average outcome here is that the motion is not likely to be entirely successful. Again, I emphasize has nothing to do with the actual merits of this motion. I'm just saying in general. If that is the likely outcome just based on the statistics and the Court's experience, then, you know, again, how much would the case be simplified to have a case that's been stayed for quite a long time where discovery hasn't even gotten fired up, all with regard to a case that's ultimately going to need to move forward probably, even if ultimately at summary judgment the patents are found to be ineligible, so I think the simplification factor here actually favors the plaintif's side.
The Court's conclusion differs from what we found when we looked at the data on § 101 motions to dismiss last year, but that was nearly a year ago.
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