A while back I wrote a post about the relative success rates of 101 motions before the different Delaware Judges. To prove once and for all that I sometimes ramble, that entire post can be distilled to the chart below:
- Chief Judge Connolly - 70% of § 101 motions granted
- Judge Andrews - 60% of § 101 motions granted
- Judge Stark - 20% of § 101 motions granted
- Judge Noreika - 0% of § 101 motions granted
But that was then, dear reader, before we had a new hotshot on the bench who is batting 1.000. If I knew how to use this site better, I would put Judge Williams at the top of this chart in flashing lights with little animated balloons (I will leave a blank space here for Andrew to put that in). [Ed. Note: We don't have that feature. Yet.]
The first such motion was back in November in Int'l Business Machines Corp. v. Zynga, Inc., C.A. No. 22-590 (D. Del. Nov. 23, 2022) (Mem. Op.). We failed to write about that one at the time because:
- It was a pretty crummy looking computer patent directed to targeted advertising, and
- I was really trying not to call one case a trend.
But now we have three-ish cases—trend established!
The next two both dealt with the same patents (although issued as separate and slightly different opinions allowing me to technically count it as two motions as long as I include this interminable parenthetical). Hot off the presses yesterday, the decisions in Wireless Discovery LLC v. Eharmony, Inc., C.A. No. 22-480 (D. Del. Feb. 6, 2023) (Mem. Order) and Wireless Discovery LLC v. Coffee Meets Bagel, Inc., C.A. No. 22-478 (same) invalidated 4 related patents. These were pretty lousy software patents too, so the overall result is not particularly surprising, but one thing stood out when looking at these decisions in conjunction with Zynga.
In both cases, Judge Williams found that the various claims were representative of all of the asserted claims—a sample passage from Zynga is below:
IBM vaguely criticizes Zynga's argument that claim 1 is representative, but, other than dependent claim 2, IBM fails to provide meaningful arguments as to the distinctive significance of claims 3-21 . . . Thus, IBM waives its representativeness argument for claims not analyzed separately, i.e., claims 3-21
Zynga at 20-21.
And here is the similar passage in eHarmony:
Wireless Discovery disagrees with eHarmony's representativeness arguments "that one claim of each asserted patent is representative of all claims." . . . Wireless Discovery, for example, states that claims 11 through 19 of the ' 875 patent "add additional concrete and technical elements and steps requiring separate patentability analysis." However, Wireless Discovery fails to describe what additional concrete and technical elements the other claims recite that would require the Court to conduct a separate patentability analysis.
eHarmony at 14-15.
Proving that a claim is representative has historically been a heavy lift for DE defendants in the last couple years, so it's interesting to see three decisions in a row finding the claims to be representative. If we get a fourth one where this happens, expect a week long analysis.
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