Eastern District of Texas District Judge Rodney Gilstrap, who has the busiest patent docket in the United States, recently announced a new model procedure for handling the onslaught of so-called “101” or “Alice” motions. “Alice” refers to the United States Supreme Court’s June 2014 decision in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), which held that patents that merely implement an “abstract” idea on a generic computer are not eligible for patent protection under 35 U.S.C. section 101. The basic rationale behind the decision is this: abstract ideas are not patentable because they are the basic tools of scientific and technological work, and monopolizing those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it (thereby thwarting the primary object of the patent laws). Alice held that stating an abstract idea while adding the words “apply it with a computer” is not enough to obtain a patent.

Fast-forward to roughly one year into the post-Alice world. Defendants facing patent infringement assertions have filed several dozen motions to challenge patents as invalid under Alice, and many are being challenged at the pleading stage via FRCP 12(b)(6) motions to dismiss or FRCP 12(c) motions for judgment on the pleadings. The vast majority of these motions have been granted. But some district courts have been hesitant to invalidate patents at the pleading stage without first interpreting or “construing” the claims of the patent, which typically occurs later in the case after the parties have exchanged infringement and invalidity contentions, and engaged in discovery. And while the Federal Circuit has made clear that claim construction is not necessarily required before finding a patent to be ineligible, some courts have denied early Alice motions without prejudice, pending claim construction.

Highlighting this issue, Judge Gilstrap recently announced a new procedure for handling Alice motions before the court has construed the patent. The new procedure, contained in a sample docket order posted to the Eastern District of Texas website, requires leave from the court, upon a showing of good cause, if a party wishes to bring an early Alice motion. Similar to the procedure the court has adopted for summary judgment motions, the court will manage the good cause determination through a letter briefing process. Under this process, a defendant may file a five-page opening letter brief; the plaintiff may respond with a five-page letter brief within 14 days; and the defendant may reply with a three-page brief within five days thereafter.

Judge Gilstrap has started adopting this new procedure in cases that have been pending for several months. It remains to be seen whether or how this procedure will affect the numbers of Alice motions heard at the pleading stage, and/or whether other judges will adopt these procedures. Stay tuned.