Go Ask Alice, When She’s Ten Feet Tall

With apologies to Jefferson Airplane, the Supreme Court’s Alice v. CLS Bank opinion has grown dramatically in size and strength since it issued in June. In that time, the Federal Circuit and federal district courts from New York to California have decided twenty–two cases of which we are aware. Of those, eighteen have found the disputed patent claims to be ineligible for patenting, hence, invalid. Of those decisions invalidating patent claims, ten were decided on the pleadings, either on a motion to dismiss or motion for judgment on the pleadings. To repurpose an election–season turn of phrase, courts are using Alice to invalidate abstract patent claims both often and early (in litigation).

For those scoring at home, here is a list of cases, courts, and outcomes:

1. buySAFE, Inc. v. Google, Inc. (Fed. Cir. 2014) (affirming judgment of invalidity on the pleadings);
2. Digitech Image Techs., LLC v. Electronics for Imaging, Inc. (Fed. Cir. 2014) (affirming summary judgment of invalidity);
3. Planet Bingo, LLC v. VKGS, LLC (Fed. Cir. Aug. 26, 2014) (affirming summary judgment of invalidity);
4. DietGoal Innovations LLC v. Bravo Media LLC (S.D.N.Y. July 8, 2014) (granting motion for summary judgment);
5. Comcast IP Holdings I, LLC v. Sprint Commcn’s Co. L.P. (D. Del. July 16, 2014) (granting motion for partial summary judgment);
6. Data Distribution Techs., LLC v. BRER Affiliates, Inc. (denying motion to dismiss without prejudice);
7. CMG Fin. Servs., Inc. v. Pacific Trust Bank, F.S.B. (C.D. Cal. Aug. 29, 2014) (granting motion for summary judgment);
8. Genetic Techs. Ltd. v. Lab. Corp. of Am. Holdings (D. Del. Sept. 3, 2014) (report and recommendation that the court grant motion to dismiss);
9. Walker Digital, LLC v. Google, Inc. (D. Del. Sept. 3, 2014) (granting motion for summary judgment);
10. Loyalty Conversion Sys. Corp. v. Am. Airlines, Inc. (E.D. Tex. Sept. 3, 2014) (granting motion for judgment on the pleadings in a decision by Judge Bryson of the Federal Circuit sitting by designation as trial judge);
11. Tuxis Techs., LLC v. Amazon.com, Inc. (D. Del. Sept. 3, 2014) (granting motion to dismiss);
12. Eclipse IP LLC v. McKinley Equip. Corp. (C.D. Cal. Sept. 4, 2014) (granting motion to dismiss);
13. Autoform Eng’g GMBH v. Eng’g Tech. Assocs., Inc.(E.D. Mich. Sept. 5, 2014 (denying cross–motions for summary judgment);
14. Every Penny Counts, Inc. v. Wells Fargo Bank, N.A. (M.D. Fla. Sept. 11, 2014) (granting motion for summary judgment);
15. Helios Software, LLC v. SpectorSoft Corp. (D. Del. Sept. 18, 2014) (denying motion for partial summary judgment);
16. Open Text S.A. v. Alfresco Software Ltd. (N.D. Cal. Sept. 19, 2014) (granting motion to dismiss);
17. McRO, Inc. v. Namco Bandai Games Am., Inc. (C.D. Cal. Sept. 22, 2014) (granting motion for judgment on the pleadings in multiple consolidated cases);
18. Card Verification Solutions, LLC v. Citigroup Inc. (N.D. Ill. Sept. 29, 2014) (denying motion to dismiss);
19. Cogent Medicine, Inc. v. Physicians Interactive Holdings, Inc. (N.D. Cal. Sept. 30, 2014) (granting motion to dismiss);
20. DietGoal Innovations LLC v. Chipotle Mexican Grill, Inc. (granting motion for summary judgment in a decision by Judge Bryson of the Federal Circuit sitting by designation);
21. AmDocs (Israel) Ltd. v. Openet Telecom, Inc. (E.D. Va. Oct. 24, 2014) (granting motion for judgment on the pleadings);
22. Peter Wolf v. Capstone Photography, Inc. (C.D. Cal. Oct. 28, 2014) (granting motion for judgment on the pleadings).