The seemingly endless war between certain types of patent owners (often socalled “nonpracticing entities” or NPEs) and certain types of defendants (typically corporations perceived to have deep pockets) has been fought on many fronts over the last decades. Such plaintiffs file sketchy complaints, asserting patents of dubious validity, in courts that are perceived as a bit too friendly to patent owners. Legislation that is thought to tip the scales in favor of one side or the other is often introduced. It is seldom enacted.

In recent years, defendants have made gains in the courts in three important areas. First, in 2015, “Official Form 18″ was removed from the federal rules. It had listed the skimpiest requirements for pleading patent infringement, often relegating defendants to guess what they'd done wrong, and inoculating plaintiffs from motions to dismiss.

Second, in Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 134 S. Ct. 2347 (2014), the Supreme Court ruled that many inventions directed to certain nontechnological areas such as business methods were not eligible for protection under the patent laws. As the socalled Alice defense proliferated, it came to be accepted that the defense could be raised under Fed. R. Civ. P. 12(b)(6) on a motion to dismiss for failure to state a claim. See, e.g., Content Extraction & Transmission v. Wells Fargo Bank, 776 F.3d 1343 (Fed. Cir. 2014).