When Section 101 Goes To Trial: Alice Step Two Decided By Jury

Many of the cases we discuss on this blog are decided at the district court level on a motion to dismiss or for judgment on the pleadings. Some are decided on summary judgment. But what happens when step two of the inquiry under Alice Corp. v. CLS Bank Int'l, 573 U.S. 208 (2014), which asks if a claim found at step one to be directed to an abstract idea is saved from ineligibility by transformative subject matter, requires answering a genuine question of fact?

The Federal Circuit has made clear that the existence of such a factual dispute precludes summary judgment, Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018) ("The question of whether a claim element or combination of elements is well-understood, routine and conventional to a skilled artisan in the relevant field is a question of fact."), and patentees opposing a Section 101 motion will attempt to demonstrate that such a dispute exists. The difficulty of doing so does not, however, rise to the level