33% Success Rate for §101 Motions to Dismiss

Prior to 2010, §101 invalidity defenses were not asserted at the pleading stage via a Rule 12(b)(6) motion. In 2010, Bilski v. Kappos, 130 S.Ct. 3218 (2010) opened the door for such motions with two being denied and one granted that year. In 2014, district courts considered fifteen §101 motions to dismiss, but denied or partially denied two-thirds. While several courts denied the motions because the claims did not appear to involve unpatentable subject matter, the more common basis for denial was a lack of a fully developed factual record or claim construction.

Click here to view a Motion Success Report for §101 motions to dismiss.
Click on portions of the chart to view the underlying orders.