The Federal District Court in Delaware recently denied a motion to dismiss a patent infringement case involving a video game networking technology patent based on the patent allegedly being  invalid for lack of patent-eligible subject matter under 35 U.S.C. § 101. Despite all of the recent press regarding the so-called Alice test, which revised the test for patent-eligible subject matter, video game related patents are still obtainable and enforceable. It is critical that patent applications for these inventions be carefully considered, the patent applications be properly drafted and the claims be presented in a way that complies with the relevant test.

In this case, the Court found that the invention solved a “scalability” issue with prior communication techniques and thus was not directed to a patent-ineligible abstract idea. Further the Court characterized the Defendants description of the claims as an impermissibly “high level of abstraction,” such that they are “untethered from the language of the claims,” citing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1337 (Fed. Cir. 2016).