Escaping Summary Judgment Under § 101

Setting a new course with respect to 35 USC § 101 litigation issues, the US Court of Appeals for the Federal Circuit held that the issue of whether a claim recites patent eligible subject matter—a traditional question of law—may also contain disputes over underlying facts sufficient to prevent a court from granting summary judgment. Berkheimer v. HP Inc., Case No. 17-1437 (Fed. Cir., Feb. 8, 2018) (Moore, J). The underlying factual disputes in Berkheimer involved step two of the Alice analysis ( IP Update, Vol. 17, No. 7) as decided by the district court on summary judgment. Here, the Federal Circuit vacated the grant of summary judgment with respect to some of the disputed claims.