As I understand the current state of things, the Alice decision is not necessarily going away or being overturned. I think the Berkheimer Federal Circuit case simply clarified that the second test under the Alice decision is to be solely treated as a question of fact, where previously, including in the SFOR case before Judge K., it was treated as a question of law, and therefore ripe for decision during a motion to dismiss. The Berkheimer case, if I understand correctly, basically says a MTD is not the proper stage to determine the second test of Alice, and that is for a fact finder. Now, that would still be the judge in a bench trial, but that could be jurors in a jury trial. Either way, it means the Fed. Circuit Court of Appeals is likely, at the least, to send SFOR's appeal back to judge K with the instructions to make a determination of fact as to the inventiveness of SFOR's patent claims. What makes that important is the fact that the Berkheimer case and the Oil States Energy Services case from the SCOTUS both came down AFTER Judge K's dismissal of SFOR's case in December, 2017. The Oil States case is important because it essentially places the PTAB's decision regarding a patent's validity during an IPR on the same level of authority as a normal Article III federal court. SFOR has already been through 2 separate IPRs before the PTAB and won BOTH times. If you're still following along, congratulations.
But seriously, in my slightly educated eyes, this means that in the timeline, after the dismissal by Judge K., the Fed. Cir and SCOTUS issued two decisions that, in combination, effectively state IPR decisions by the PTAB have the effect of a court ruling, and that SFOR has two court rulings that eliminate the question of fact under the second test of the Alice decision because they have already determined the facts. So, under Alice, the SFOR appeal must be sent back to Judge K for a determination of fact; and under Oil States, that fact is already determined (that SFOR's patents are valid) as held by the PTAB in the two successfully defended IPRs.
Whew. I need a drink. Anyway, Alice is not a bad decision, it just needed tweaking. It was tweaked by the Fed. Cir. in a favorable way for SFOR, and the Oil States case makes it clear how Judge K. SHOULD rule on the facts once it gets back in his courtroom. Although, ideally, the Fed. Cir. will recognize the inevitable outcome in light of all these developments that occurred AFTER Judge K's ruling, and simply reverse his decision with instructions to rule in SFOR's favor, in an effort to cut out a bunch of paper-pushing and delays in court filings and redtape bullshit formalities. If that happens, it will eliminate a lot of work for bureaucrats and save some taxpayer dollars.
But seriously, in my slightly educated eyes, this means that in the timeline, after the dismissal by Judge K., the Fed. Cir and SCOTUS issued two decisions that, in combination, effectively state IPR decisions by the PTAB have the effect of a court ruling, and that SFOR has two court rulings that eliminate the question of fact under the second test of the Alice decision because they have already determined the facts. So, under Alice, the SFOR appeal must be sent back to Judge K for a determination of fact; and under Oil States, that fact is already determined (that SFOR's patents are valid) as held by the PTAB in the two successfully defended IPRs.
Whew. I need a drink. Anyway, Alice is not a bad decision, it just needed tweaking. It was tweaked by the Fed. Cir. in a favorable way for SFOR, and the Oil States case makes it clear how Judge K. SHOULD rule on the facts once it gets back in his courtroom. Although, ideally, the Fed. Cir. will recognize the inevitable outcome in light of all these developments that occurred AFTER Judge K's ruling, and simply reverse his decision with instructions to rule in SFOR's favor, in an effort to cut out a bunch of paper-pushing and delays in court filings and redtape bullshit formalities. If that happens, it will eliminate a lot of work for bureaucrats and save some taxpayer dollars.
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