Judge Richard G. Andrews recently denied without prejudice a motion to dismiss for lack of patentable subject matter under 35 U.S.C. § 101. Pacific Biosciences of California, Inc. v. Oxford Nanopore Technologies, Inc., No. 17-275-RGA (D. Del. Nov. 9, 2017). Judge Andrews decided that, while it may be appropriate in some circumstances to decide such a motion at the pleading stage, “Plaintiff briefed the motion as though it were a summary judgment motion . . . and at argument both sides referred to an understanding of the technology and the state of the art at the time of the invention.” Id. at 2. Therefore, “[u]nder the circumstances of this case, and considering the technology of the patent being asserted, [the Court did] not think patent-ineligibility [wa]s something that [the Court could] fairly decide on a motion to dismiss.” Id.
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