When is an Alice Challenge Ripe?

When defending against a software patent attack, litigants often address patent-eligibility by filing covered business method (CBM) reviews, moving to dismiss the lawsuit altogether, or waiting until summary judgment. Although not every court requires claim construction before invalidating a patent under §101, others tend to require clarity as to the meaning of the claims before deciding whether the claims are patent-eligible. The District of New Jersey went so far as to avoid deciding patent-eligibility because an unrelated case involving similar technology was on appeal to review issues of novelty and obviousness.

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