I mentioned the other day that my "unscientific guess" was that on average, locally one 101 dismissal generates about half a dozen dismissed cases. Well, it's a little more than that, at least in some cases. Yesterday Judge Schroeder affirmed a report and recommendation recommending dismissal on 101 grounds by Magistrate Judge Love. The report was objected to by the plaintiff and supported by the remaining eight (8) defendants, out of the original 54 or so that the plaintiff had sued.
Judge Schroeder rejected the argument that Judge Love should have converted the motion to a summary judgment motion and considered a proffered expert declaration, noting a subsequent Federal Circuit case that held that "[t]he mere existence in the record of dueling expert testimony does not necessarily raise a genuine issue of material fact." Judge Schroeder also affirmed Judge Love's finding that the patent was directed to an abstract idea, and that it didn't contain an inventive concept that transformed the nature of the claims into patent-eligible subject matter.