Alice Challenge Unsuccessful For Failure To Establish Representative Claim

Patent lawsuits often involve multiple patents and dozens of asserted patent claims. When asserting these claims lack patentable subject matter, it can be more convenient to describe the asserted claims in one representative form, or as some courts require, establish a "representative claim" that is generic to all claims and whose patent-eligibility can be imputed to all asserted claims. The District of Delaware recently denied a motion to dismiss for lack of patentable subject matter because the defendant failed to establish a representative claim.

In JSDQ Mesh Technologies LLC v. Fluidmesh Networks, LLC, Case No. 16-cv-212-GMS (D. Del. Sept. 6, 2016), Fluidmesh argued the asserted claims lacked patentable subject matter under the Alice/Mayo framework. Rather than analyze patent-eligibility on the merits, the court first asked whether it was proper to do so by determining (1) whether a representative claim had been established; (2) whether claim construction