Voip Pal Com Inc (VPLM)

[toobigtojail]

Actually, Voip Pal doesn't need to modify the details of the inventions. They have articulated the details quite well in the patents. Regrettably, the Alice motions are subjective in terms of being adjudicated, as there are not clear guidelines.

Recent precedent from 2018 suggest that Alice motions should not even be heard until after a trial so that the concrete aspects of the patents can be argued before a jury. Making judicial exceptions prior to the court case being heard is gaining more and more opposition.

https://www.patentdocs.org/2018/07/guest-post-will-alice-become-the-new-markman.html

"In Berkheimer, the validity of a patent ultimately hinged upon whether a particular feature of the claimed invention could be considered inventive. According to the panel, conventionality is determined by what others skilled in the art were doing at the time the invention was made, i.e., a question of fact. Berkheimer argued that summary judgment was not appropriate because genuine issues of material fact remained regarding whether the claimed invention was well-understood, routine, and conventional, a question for which HP had offered no evidence. The Court distinguished between what is known and what is "well-understood, routine and conventional." Judge Moore writes: "Whether a particular technology is well-understood, routine, and conventional goes beyond what was simply known in the prior art. The mere fact that something is disclosed in a piece of prior art, for example, does not mean it was well-understood, routine, and conventional."

Aatrix, decided February 14, 2018, doubled down on the Berkheimer decision, holding that a factual inquiry had to be performed to establish whether a step was genuinely unconventional. While the case was remanded during the pleadings phase of Aatrix (as opposed to during a summary judgment as in Berkheimer) the reasoning underlying the decision was essentially the same. During pleadings before the District Court, Aatrix attempted to file an amended complaint that it claimed contained information relevant for determining the eligibility of the disputed invention. The District Court denied the motion to amend. The CAFC ruled that it was necessary for courts to consider any evidence relevant to determining the eligibility of a patent, and therefore, such amendments had to be permitted. In Aatrix, the District Court also ruled that the patents in dispute were invalid before claim construction could be performed. The CAFC disagreed: "If there are claim construction disputes at the 12(b)(6) stage . . . either the court must proceed by adopting the non-moving party's constructions . . . or the court must resolve the disputes to whatever extent is needed to conduct the § 101 analysis, which may well be less than a full, formal claim construction."

This is far from "over"