Fairwarning Or Fair Weather For Patentees?

Following Alice Corp. v. CLS Bank International, 134 S. Ct. 2347 (2014), accused infringers have favored the tactic of filing an early motion to dismiss. The perceived effectiveness of these motions, coupled with their potential to nip a litigation in the bud, propelled their use. This trend met resistance in BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016) and McRO, Inc. v. Bandai Namco Games America, Inc., No. 2015-1080 (Fed. Cir. Sept. 13, 2016), where claims survived early dispositive motions. But in the recent case FairWarning IP, LLC v. Iatric Systems, Inc., No. 2015-1985 (Fed. Cir. Oct. 11, 2016), the Federal Circuit affirmed the early invalidation of claims under Alice. This further refinement of patent-eligibility jurisprudence is important for all patent attorneys, both prosecutors and litigators.