As we discussed earlier this week, Judge Stark's last § 101 day (maybe ever) was a real coup for the patentees, with all 6 patents surviving. This is, of course, the ultimate continuation of a years-long trend in these hearings with § 101 motions facing harsher and harsher odds.
What we at IP/DE have not discussed is how this trend compares to the averages for our other judges. Running the numbers on the 10 most recent rule 12 motions on 101 issues, the results are as follows:
- Judge Stark - 20% of § 101 motions granted
- Judge Andrews - 60% of § 101 motions granted
- Judge Noreika - 0% of § 101 motions granted
- Chief Judge Connolly - 70% of § 101 motions granted
Judge Noreika's denial of all 10 of her most recent § 101 seems to be due in large part to her recent tendency to issue brief orders denying § 101 motions as premature, such as in UberFan, LLC v. Snap Inc., C.A. No. 21-842, D.I. 24 (D. Del. Nov. 19, 2021), where she stated:
it is not an efficient use of the Court’s time to address the patent eligibility of
more than eighty claims from the Asserted Patents – even with a purportedly representative claim – at the motion to dismiss stage, particularly where the parties dispute whether that claim is representative.
Uberfan, at 2.
I lack an easy explanation as to the variation between the other judges. The small sample size is likely to blame for much of it, and naturally there is a great deal of variance between the patents asserted in each of these cases. But to the extent a defendant with dreams of an early § 101 motion would like to handicap their chances, the data is interesting.
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