In Tuxis Tech v. Amazon, the Delaware District Court considered a claim directed to a computerimplemented method for upselling (i.e., seeking additional purchases based on a buyer’s initial purchase and preferences). The plaintiff conceded that the notion of upselling was indeed merely an abstract idea but argued that several
limitations – such as an electronic communications device, and the creation of a data element related to the buyer – conferred patent eligibility. Judge Andrews disagreed, dismissing the case on the pleadings while holding that none of the limitations the plaintiff pointed to are “meaningful.” For example, the court noted that upselling via an electronic communications device, as opposed to conducting the sale in a brickandmortar store, was not an inventive concept above and beyond the abstract idea of upselling that is at the heart of the claim. Tuxis Tech. v. Amazon.com, No. 131771RGA (DDE September 3, 2014). Notably, Judge Andrews dismissed the case at the motion to dismiss stage, prior to a Markman hearing; he reasoned that a motion to dismiss is appropriate “if the only plausible reading of the patent must be that there is clear and convincing evidence of ineligibility.” (Slip. op. at 3 (internal citations omitted)). In another softwarepatent case decided this past week, the Central District of California followed Judge Andrew’s lead and found invalidity under § 101 at the motion to dismiss stage. The CDCA rejected the plaintiff’s argument that the motion to dismiss was premature due to factual disputes; the court instead agreed with the defendant that dismissal is not premature because claim construction is not purely a question of fact.
Eclipse IP LLC v. McKinley Equipment Corporation, 814cv00742 (CACD September 4, 2014) (Wu, J.).