Berkheimer is also equally important, if not more important, because it stands for the proposition that questions of fact can and do underline patent eligibility determinations. This is important not only because it will make summary judgment more difficult for infringers, but because if there are questions of fact underneath the patent eligibility determination it should be exceptionally difficult (if not virtually impossible) for district courts to dismiss patent infringement complaints using FRCP 12(b)(6). This is true because under FRCP 12(b)(6) all facts asserted in the complaint by the plaintiff (i.e., the patent owner) are taken as true and dismissal appropriate only where there can be no victory by the plaintiff even based on the facts plead in the complaint.
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