Section 101 On Trial: Understanding How Eligibility Issues Have Fared Before Juries

"Our review found just four cases where a jury addressed some aspect of Section 101, all from the Eastern District of Texas.... In every one, the jury found the claims routine and conventional. This fact should concern lawyers representing patentees and prompt a rethinking of strategy."

Few lawyers have tried patent eligibility, 35 U.S.C. Section 101, to a jury. Our research found just four such cases since the Supreme Court created its muddled two-step test in Alice v. CLS Bank. In every one of those, the jury issued a pro-ineligibility verdict, while none resulted in a final Section 101 determination either way. Understanding how that issue has been handled at and after trial is important for practitioners with cases where Section 101 is at issue, which has become increasingly common.