Are Questions Of Fact Being Overlooked In Software Cases?

Law360, New York (January 12, 2015, 10:06 AM EST) -- Defendants have used 35 U.S.C. § 101 as a powerful tool to short-circuit infringement cases involving software patents since the U.S. Supreme Court's proclamation in Alice Corp. Pty. Ltd. v. CLS Bank.[1] Emboldened by recent appellate decisions, they are filing dispositive motions at the onset of litigation that assert a patent claims patent-ineligible subject matter. District court judges have granted many of these motions, often tossing software cases before meaningful fact discovery has been completed and before conducting a claim construction hearing.[2]

The manner and timing of these dismissals raises an important question that has not yet been raised or addressed:...

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