The seminal Alice v. CLS Bank lawsuit provided an arsenal of invalidation weapons for patent defendants across the country. Alice was particularly relevant to software patents because it held a large swath of software patents to be invalid – particularly those that did no more than implement an abstract idea on a general purpose computer.

The defense bar pounced on this new opportunity. Following Alice, defendants filed motions to dismiss against nonpracticing entities and others who asserted software patents in patent litigation. Many of those motions were granted until courts eventually hesitated to grant relief in the earlier stages of the lawsuit—instead preferring to analyze patentable subject matter once the claims of the patent were construed.

1. Geocomply Case

The District of Delaware issued a pair of orders last week that shows the pendulum may be swinging back to the early post-Alice days. GeoComply Solutions, Inc. (which, to be clear, is not an NPE) recently found themselves on the losing end of a motion to dismiss by XPoint Services. The patent at issue determined a user’s geographic location and prevented users from making sports bets within a state where sports betting was illegal.

Judge Bryson sat on the case by designation. He found the claims to be invalid under Section 101 for lack of patentable subject matter and declined to wait until after Markman to make the determination. Bryson found the patent was directed to the abstract idea of “determining the location of a device based on geolocation information and programs present on the device,” and that the claims did not include any additional inventive concept.

2. Wireless Discovery Case

The same week, Judge Williams dismissed a complaint filed by an NPE named Wireless Discovery, LLC in the District of Delaware. Here, too, the claims were analyzed under Alice and found unpatentable as being directed to the abstract idea of “simply exchanging information about people based on their location and membership in an organization.” The Court found no inventive concept because “the computer components recited in the claims are used for their conventional purposes.”

These decisions represent a stark change from the more conventional practice of denying motions to dismiss until after Markman. The District of Delaware appears to be taking a “cut to the chase” approach to patent-eligibility and determining this critical gating issue in the early stages of litigation. It remains to be seen whether these two cases are outliers or indicative of a going-forward trend. But for now, defendants will find hope that their case may be resolved sooner rather than later, with an old friend providing the basis for invalidity.