SerendIPity: Dykema
Dykema Gossett PLLC
Dykema Gossett PLLC

SerendIPity: Dykema's Intellectual Property Law Blog

Intellectual Property Law Blog

News and Analysis of Legal Issues Affecting Intellectual Property



Showing 27 posts in Patent.

Another Patent Survives Motion to Dismiss Amid §101 Skepticism

Following a wave of decisions previously covered by Dykema, Judge Robinson of the United States District Court for the District of Delaware issued another decision holding that a software-based patent passes muster post-Alice. In Treehouse Avatar LLC v. Valve Corp., Civ. No. 15-427-SLR (D. Del. Mar. 22, 2016, Order), Judge Robinson opined on the trajectory of software patents and cautioned how Section 101 analysis might be going too far at the pleadings stage.  Read More ›

Not So Fast: Pushback to Invalidate Patents Absent Further Review May be a Growing Trend

In March 2016, a number of district courts have expressed hesitation to decide 35 U.S.C. § 101 patentability too soon. Although each court offered its own interpretation of how to proceed, the underlying message was clear: there is growing concern some courts have ruled on the validity of certain software and other computer-implemented technologies prematurely post-AliceRead More ›

Law360: 3 Reasons IP Cases Still Need General Trial Lawyers

Dykema trial lawyer Aaron Charfoos was recently interviewed by IPLaw360 on the continuing role of the generalist trial attorney in patent litigations. The article can be found at

Judge Gilstrap’s New Standing Order Eliminates Requirement to Seek Leave Prior to Filing Alice Motions, Introduces New Certification Requirement

On November 10, 2015, Judge Rodney Gilstrap of the United States District Court for the Eastern District of Texas issued a new standing order eliminating the requirement to seek leave before filing motions to dismiss on grounds that a patent is invalid under 35 U.S.C. § 101. A significant influx of these so-called “Alice motions” were filed in the Eastern District of Texas following the Supreme Court’s decision in Alice Corp. Pty Ltd. V. CLS Bank Int’l, 134 S. Ct. 2347 (2014). Judge Gilstrap’s previous Docket Control Order required that parties file letter briefs prior to filing Alice motions. Read More ›

The Storm Before the Calm Part II

On October 30, 2015, in our post “The Storm Before the Calm,” we predicted that the number of patent infringement suits filed in district courts would be way up in November. We believed that we would see this spike, in part, as plaintiffs rushed to file their lawsuits ahead of the December 1, 2015, changes to the Federal Rules. These changes eliminated Form 18, the bare bones patent litigation complaint, that patent plaintiffs have heavily relied on in recent years. From now on, plaintiffs will need to include enough detail to ensure that their claims are “plausible.” Read More ›

The Storm Before the Calm

It has been widely reported that patent litigation filings have been way up in 2015, bucking the post-Alice crash in the second half of 2014. However, we anticipate that November 2015 will see an even bigger spike in patent litigation filings. Why?  Read More ›

The Supreme Court Eyes Enhanced Patent Damages

The Supreme Court has significantly reigned in patent litigation and damages over the past few years-acting where Congress seemingly has been unable to do so. However, the Court just granted certiorari in two (now one combined) cases Halo Electronics, Inc. v. Pulse Electronics, Inc. and Stryker Corp. v. Zimmer, Inc.  Read More ›

Eastern District of Texas Judge Requires Permission to File Alice Motions

Federal Judge Rodney Gilstrap recently ordered that patent defendants seeks leave and show good cause prior to filing an early motion seeking judgment that a patent is invalid under the U.S. Supreme Court’s Alice Decision.  Read More ›

2015 Patent Litigation Trends

In a recent post, Dennis Crouch at Patently-O analyzes the most recent trends in patent litigation filings. Contrary to some other studies which show a decrease in patent litigation, Crouch’s data (collected from Lex Machina) shows that patent litigation in 2015 has either plateaued or increased. In addition, if you include IPR petitions in “patent litigation,” 2015 is on track to be the most active patent litigation
year (see chart below).  Read More ›

Good-faith Belief in Patent Invalidity – Not a Defense to a Charge of Inducement

On Tuesday, in a decision vacating the Federal Circuit’s June 25, 2013 panel decision and remanding, the SCOTUS held that a defendant’s belief that a patent is invalid does not serve as a defense to a charge of inducing infringement of the patent. Commil USA LLC v. Cisco Systems, Inc., No. 13-896, 575 U.S. ___, ___ (2015) (slip op. at 9) (U.S. Supreme Court May 26, 2015). In its earlier decision, the Federal Circuit had held that an accused inducer’s alleged good‑faith belief in the invalidity of the asserted patent was a defense to a charge of induced infringement under 35 USC § 271(b).  Read More ›