In Berkheimer and Aatrix , the Federal Circuit indicated that although patent eligibility under Section 101 is ultimately a question of law, the determination may have factual underpinnings that, at least in some cases, render it inappropriate for motions to dismiss or for summary judgment. The Federal Circuit did state, however, that “[p]atent eligibility has in many cases been resolved on motions to dismiss or summary judgment. Nothing in this decision should be viewed as casting doubt on the propriety of those cases.” Berkheimer, 881 F.3d at 1368. Specifically, patent eligibility can be determined at the Rule 12(b)(6) stage “only when there are no factual allegations that, taken as true, prevent resolving the eligibility question as a matter of law.” Aatrix, 882 F.3d at 1125. And indeed, following Berkheimer and Aatrix, the Federal Circuit has itself affirmed numerous Section 101 rulings that were made at the dismissal or pleadings stage. See, e.g., Burnett v. Panasonic Corp ., Interval Licensing LLC v. AOL, Inc. , SAP America, Inc. v. InvestPic, LLC and Voter Verified, Inc. v. Election Sys. & Software LLC ). Further, the recent decisions highlighted below illustrate that district courts remain willing to invalidate patents under Section 101 at the motion to dismiss stage . Finally, it is worth noting that Senators Chris Coons and Thom Tillis held a roundtable on December 12, 2018, inviting dozens of companies, industry groups, and patent law experts to discuss potential legislative reform of Section 101, which could redefine the contours of patent eligibility.

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Ana Friedman is a patent litigation attorney in Womble Bond Dickinson’s Winston-Salem, NC office. In addition to her experience representing a variety of clients in high-stakes patent litigation, Friedman has a strong background in engineering and proven experience managing large-scale projects. This skill set has proven helpful to her work in all aspects of litigation, from fact and expert discovery through trial, and appeal.