MITII v. OpenAI-I

Alice as a Weapon: How Section 101 Has Become Big Tech’s Second Section 230

I. Introduction: The Rise of Dual Immunities

For twenty‑five years, 47 U.S.C. § 230 has operated as a sweeping liability shield for dominant technology companies. It immunizes platforms from responsibility for the harms their users inflict. But in the last decade, a second shield has quietly emerged — one that protects Big Tech not from tort liability, but from competition.

That shield is Alice Corp. v. CLS Bank, 573 U.S. 208 (2014).

Alice was supposed to prevent monopolization of fundamental ideas. Instead, it has become a doctrinal bludgeon that allows entrenched technology companies to invalidate outsider patents at the pleading stage, before discovery, before claim construction, and often before the inventor can even explain what the invention is.

The recent hearing in MITII, Inc. v. OpenAI Global, LLC, Case No. 5:26‑cv‑00191‑NW (N.D. Cal.), illustrates this dynamic with almost clinical clarity. The transcript shows a court leaning heavily toward dismissal, repeatedly collapsing the distinction between abstractness (Section 101) and novelty/obviousness (Sections 102/103) — exactly the doctrinal confusion the Federal Circuit has warned against.

II. How Alice Became a Gatekeeping Tool for Big Tech

Alice created a two‑step test:

1. Is the claim “directed to” an abstract idea?
2. If so, does the claim contain an “inventive concept”?

In practice, courts often treat Step One as a license to oversimplify the invention, and Step Two as a license to declare that every technological component is “conventional.”

This is precisely what happened in MITII v. OpenAI.

III. The MITII Hearing: A Case Study in Section 101 Overreach

The transcript reveals a pattern: the court repeatedly reframed MITII’s invention as nothing more than “text‑to‑speech” and “animation,” even though MITII expressly disclaimed those as the inventive aspects.

A. The Court’s Repeated Focus on Pre‑Existing Technologies

Judge Noel Wise repeatedly insisted that MITII’s invention merely used existing technologies:

“Text to speech… already exists.” (Transcript at p. 19)

“Animation… has been around for a long time.” (p. 16)

“All of that can be done now… the video can be manipulated now by computer.” (p. 22)

This framing is not a Section 101 analysis. It is a Section 102/103 novelty/obviousness analysis, which is not permitted at the Rule 12 stage under Alice.

The Federal Circuit has repeatedly warned courts not to do this:

• Aatrix Software v. Green Shades, 882 F.3d 1121 (Fed. Cir. 2018): “Whether the claim elements or the claimed combination are well‑understood, routine, and conventional is a question of fact.”

MITII’s counsel tried to explain this:

“Those go to the question of originality and obviousness, not abstractness.” (p. 30)

But the court continued to treat pre‑existing components as dispositive of abstractness.

B. The Court’s Oversimplification of the Claims

MITII’s counsel emphasized that the claims must be considered as a whole, not reduced to their individual components:

“Defendant has really oversimplified the claims… the Federal Circuit warns against doing that.” (p. 16)

Yet the court repeatedly collapsed the invention into a trivial description:

“It seems to be reciting what exists.” (p. 19)

“If all 14 of those steps existed… it’s not new and inventive.” (p. 30)

This is precisely the analytical error condemned in McRO v. Bandai, 837 F.3d 1299 (Fed. Cir. 2016), where the court held:

“Courts must be careful not to oversimplify claims by looking at them generally and failing to account for the specific requirements of the claims.”

MITII’s counsel invoked McRO:

“The abstract idea will swallow the whole provision of patenting… it would be impossible to get a patent on software.” (p. 16)

But the court did not engage with this warning.

C.The Court’s Reliance on Illegality as a Proxy for Abstractness

At several points, Judge Noel Wise suggested that MITII’s invention was not inventive because using a celebrity’s likeness would require a license:

“The only way you can do that is if you license it… again how is that inventive?” (p. 20–21)

This is legally irrelevant.

Patent eligibility does not depend on whether practicing the invention might violate another law. If it did, firearms, pharmaceuticals, and encryption would all be unpatentable.

MITII’s counsel correctly responded:

“Illegality of a patented device… is not an issue here.” (p. 24)

Yet the court continued to treat licensing as central to the Section 101 analysis.

D. The Court’s Repeated Statements Suggesting a Predisposition to Dismiss

Throughout the hearing, Judge Noel Wise made comments indicating she viewed the invention as plainly abstract:

“Why isn’t this just an abstract idea?” (p. 20)

“It suggests to me that actually it would compel a different result here.” (p. 22)

“I don’t think it moves the needle… I don’t think it changes anything.” (p. 12)

These statements show a court leaning toward dismissal even before fully engaging with the claim language or the Federal Circuit’s warnings about oversimplification.

IV. The Broader Pattern: Alice as a Structural Immunity

What happened in MITII v. OpenAI is not an anomaly. It is part of a broader pattern:

• Big Tech invokes Alice at the Rule 12 stage.
• Courts oversimplify the claims.
• Courts treat pre‑existing components as dispositive.
• Courts collapse Section 101 into Section 102/103.
• Outsider patents die before discovery.

This is why Alice has become the patent‑eligibility counterpart to Section 230:

• Section 230 immunizes Big Tech from liability for user conduct.
• Alice immunizes Big Tech from disruptive outsider innovation.

Both doctrines operate as early‑stage dismissal mechanisms. Both doctrines disproportionately benefit entrenched platforms. Both doctrines shrink the public’s ability to assert rights against dominant technology companies.

V. Conclusion: The Need for Doctrinal Discipline

The MITII hearing shows how easily Section 101 can be misapplied — how quickly courts can drift from abstractness into novelty, from claim language into technological capability, from legal analysis into policy preference.

The Federal Circuit has repeatedly warned against this. But unless courts follow those warnings, Alice will continue to function as a structural immunity, allowing Big Tech to invalidate outsider patents before the case even begins.

And that is precisely how Alice has become the second Section 230.

If you need help regarding your intellectual property, your business, your products and services, or other related intellectual property or business matters, contact Ahmadshahi Law Offices today and get an initial consultation.

Michael M. Ahmadshahi concentrates his practice on patents, trademarks copyrights, trade secrets and other intellectual property and business law. Call us toll free at (800) 747-6081 or direct at (949) 556-8800 or email mahmadshahi@mmaiplaw.com and let us help you with your IP and business matters.

Michael Ahmadshahi

Mr. Ahmadshahi’s area of practice is Intellectual Property Laws including Patent Prosecution and Litigation, Trademarks, Copyrights, Unfair Business Practices, and Business Litigation. He is also an entrepreneur and an inventor.