§ 101 eligibility preclusions cap litigation costs
Alex Moss, 24 - the executive director of the Public Interest Patent Law Institute. She was previously at the Electronic Frontier Foundation and a patent litigator at Sullivan & Cromwell. After graduating from Stanford Law School, she served as a judicial clerk to the Honorable Timothy B. Dyk of the U.S. Court of Appeals for the Federal Circuit. Letter to Senators Durbin, Coons, Tillis, and Representatives Issa and Lofgren on the Patent Eligibility Restoration Act of 2023, signed by American Civil Liberties Union, Electronic Frontier Foundation, Generation Patient, Public Citizen, Public Interest Patent Law Institute, and the R Street Institute. 1/30, https://static1.squarespace.com/static/60e5457fb89be21d705fa914/t/65b9687cbb120871dd820938/1706649724600/Public+Interest+Letter+re+PERA+-+01.30.24.pdf //DH
In addition, Section 101 is unique because district courts can decide patent eligibility as a question of law without resort to expert testimony or evidence beyond the patent. As a result, meritless cases can be resolved at an early stage before huge sums of money are wasted on attorney’s fees and other litigation costs. By contrast, Section 103 requires specific factual determinations, and therefore typically requires expert evidence and can only be resolved at trial. In some cases, courts can and have decided Section 103 issues at summary judgment, but we are not aware of any rulings on the merits at the motion to dismiss stage, when many dispositive Section 101 motions are decided.40 The difference for wrongly accused defendants is enormous: motions to dismiss are decided before discovery or trial, and thus before hundreds of thousands, and more often, millions, of dollars in litigation costs are accrued.41