Asserting a Patent Susceptible to a Patentability (35 USC 101) Challenge? Include Specific, Plausible Factual Allegations About Why Aspects of the Claimed Invention Aren't Conventional to Prevent Dismissal at the Pleading Stage
Recently, the Federal Circuit overturned dismissal of a patent infringement suit where Cellspin Soft asserted 4 patents generally related to connecting a data capture device to a mobile device to allow a user can automatically publish content to a website. The Federal Circuit found that by including “specific, plausible factual allegations about why aspects of its claimed inventions were not conventional” in the amended complaint, the court was precluded from dismissing the case. By smartly including such allegations, Cellspin will be able to proceed action against the defendants. Owners of patents directed to business methods or other subject matter on the edge of patentability should be careful to include plausible factual allegations of unconventionality of the invention to maximize likelihood of avoiding early dismissal of the case. The case is Cellspin Soft v. Fitbit (Fed. Cir. June. 25, 2019) | Download the Case PDF.