With the explosion of 35 U.S.C. § 101 challenges since Alice v. CLS Bank,1 litigants and courts are well familiar with its applicable two-part inquiry. Overlaying and shaping the Alice inquiry, however, are (1) the parties' evidentiary burdens in addressing the Alice inquiry, and (2) the standard of review for the particular motion raising the § 101 challenge.
Although the general standard of review for each type of motion is well established, district courts disagree regarding whether, within the procedural context of each type of motion, a defendant must establish its § 101 challenge by a clear and convincing standard of proof or some lesser standard. With the courts' differing stances informing both the analysis and the resulting decision, the next question becomes what a denial of any of these motions tells us about a subsequent § 101 challenge in the same case.
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Originally published in the March 18, 2016 issue of Bloomberg BNA's Patent, Trademark & Copyright Journal.
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