Fast 101 has Lived Up to its Name

Fast 101 v. CitiGroup (Supreme Court 2021)

Fast 101 lived up to its name.  Soon after the case was filed, Judge Andrews (D.Del.) dismissed the complaint for failure to state a claim. You guessed it, the claimed invention is directed to an abstract idea and therefor invalid under 35 U.S.C. 101.  Fast 101.

Fast 101’s five asserted patents are all part of a single family and  claim “an invoiceless trading system that creates incentives for customers to pay suppliers within a predetermined period of time, such as a settlement period.”  Basically, you get some discount or coupon (10% off at Saks) if you pay immediately or on-time. U.S. Patent Nos. 8,515,867, 8,660,947, 8,762,273, 9,811,817, and 10,115,098.

On appeal, the Federal Circuit affirmed finding (1) the “claims are directed to the  abstract idea of an intermediated settlement system that employs a discount for early payment”; and (2) “the claims do not recite any inventive concept to render them patent eligible.”

In the briefing, Fast 101 argued that a number of factual issues preclude judgment as a matter of law.  On appeal, however, the Federal Circuit only wrote that Fast 101’s arguments regarding factual allegations were not “identified with specificity.”

Now, Fast 101 has petitioned to the Supreme Court with two questions:

1. When analyzing patent claims for subject matter eligibility “as a whole,” does a court need to evaluate the differences between prior art allegations and the alleged inventive concept in order to fully appreciate the claim language selected by the patent drafter?

2. When the plaintiff alleges either that the claims are “directed to” an “improvement” or that the “inventive concept” is found in an “ordered combination” of claim elements, do the relevant steps of the Alice/Mayo Test become questions of fact because a technical analysis of prior art is required, thus precluding a 12(b)(6) dismissal?

3. Whether it is appropriate for a court to dismiss a complaint (and thus invalidate all asserted patents) using Rule 12(b)(6) without amendment to the complaint or oral  argument by making factual findings and rejecting the plaintiff ’s detailed factual assertions inconsistent with Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).


Truthfully, I don’t see the petition as having any shot at Supreme Court review, and am primarily writing about the case because of the cute name.  I’ll note here that the company Fast 101 is an Australian that has been using the name for more than 20 years.


20 thoughts on “Fast 101 has Lived Up to its Name

  1. 6

    When a company is infringing more than one patent in a patent family that will likely be challenged on 101 (and these days, thanks to the off-the-rails CAFC, which family isn’t?), the patent owner needs to stop asserting all their patents at the same time.

    Why risk losing all your patents in the 101 abyss if you don’t have too?

    Hold 1 or 2 back and see what the future holds (’cause, well, you know . . . there’s a rumor afloat that Congress is about ready to use their constitutional authority to restore patent eligibility to all areas of innovation).

    1. 6.1

      “there’s a rumor afloat that Congress is about ready to use their constitutional authority to restore patent eligibility to all areas of innovation.”

      It’s not a rumor if you heard if from your bathroom mirror.

      1. 6.1.1

        Yes – I would agree that this appears to be in the wishful thinking category of “rumor.”

    1. 5.1

      His demise appears to have been premature.

      That being said – a leave of absence of well over a year from one who crowed that he would never leave does draw up some interesting hypotheticals.

    2. 5.2

      Evidently not. Last week he posted once (and only once) under the “MM” moniker, and that post was allowed to stand. On Wednesday he posted on two different threads, each using an alias (“Grub DeLaffatus” on one and “Peter Corkkkoran” on another). Both of those posts were removed within ~30 min of having gone up. Yesterday he again posted on two different threads using an alias (“Derp Thinkin Gene” and “Slurp it Up”). Those two have been allowed to stand.

      I infer from all of this that the mods here are policing him very strictly. His anodyne post under his own moniker was allowed, as were his mildly insulting posts under pseudonyms that do not relate to slant-wise impersonations of regulars around here. The two slant-wise impersonations were removed. It makes me suspect that he is trying to post even more, but that the mods are killing most of those before they ever see the light of a screen.


          lol – as I often pointed out leading up to his ‘absence,’ Malcolm was veritably the Trump of the Left.

  2. 4

    I see that MM is making appearances on this thread and the one below, but not the COVID waiver thread. That surprises me. Does he not have insults to fling at us on that subject?

    1. 4.1

      I feel certain that “Grub DeLaffatus” must have “thoughts” to share on the TRIPS waiver.


            Typically, Malcolm reserved his s0ckpuppet use for posting over at PatentDocs (and would LOUDLY decry that practice on these pages as “the worst thing ever”).

            The two snippets do bear a resemblance AND Malcolm’s moniker (and icon) DID show up recently (after OVER A YEAR absence).

            In fact, the snippet on this page even shows a bit of Malcolm’s 0bsess10n with Quinn.


            ….not sure where the Grub DeLaffatus comes from though.

            Is that a (really) old grudge that you are hanging on to?


            Ah, I see from today’s post that the pseudonym was a of a post that appeared, but was taken down.

  3. 3

    Conclusory statements in a complaint about the inventiveness of a patent are not statements of fact.

    Thank you for coming to my TED talk.

  4. 1

    But that kind of incentive must have a higher melting point than previous incentives. You might be able to incentivize someone to buy a new garage door opener! Why does the Supreme Court h@ te garage door openers?

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