First published in Law360

Since the Supreme Court decided Alice in the summer of 2014, defendants increasingly have sought to invalidate patents under 35 U.S.C. § 101 at the very beginning of proceedings. Motions to invalidate under Rule 12 have become especially common. In the Eastern District of Texas, which accounts for nearly 45 percent of all patent cases filed in 2015, successful early Alice rulings are the exception rather than the norm. In fact, only 27 percent of all Alice motions in the district are granted, as compared to 71 percent nationwide. Following a wave of such motions, Judge Gilstrap instituted restrictive procedures requiring defendants to ask his permission before filing an early motion seeking to invalidate a patent under Alice. But just five months later, he modified the process to simply require, prior to one side filing the motion, that counsel confer and discuss whether claims need construction. Against this backdrop, Judge Gilstrap recently awarded attorney fees in eDekka, where the patent at issue was "demonstrably weak on its face" and was found invalid under § 101 prior to claim construction. These recent decisions from the Eastern District of Texas are addressing the so-called "problem with patent trolls," which may render moot many if not all of the more extreme provisions in recent legislative proposals to change patent law.