MITII v. OpenAI-II

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

For a decade, Big Tech has wielded Alice Corp. v. CLS Bank like a procedural sledgehammer — smashing outsider patents before discovery, before claim construction, and often before the inventor can even explain the invention. Alice was supposed to prevent monopolization of “abstract ideas.” Instead, it has become a structural immunity, much like 47 U.S.C. § 230, shielding dominant platforms from accountability and competition alike.

The recent hearing in MITII, Inc. v. OpenAI Global, LLC is a textbook example of how Section 101 has been weaponized.

A Court Leaning Hard Toward Dismissal

From the outset, Judge Noel Wise repeatedly reframed MITII’s invention as nothing more than text‑to‑speech and animation — technologies MITII expressly disclaimed as the inventive aspects. At one point, the judge stated:

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

Later:

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

This is not a Section 101 analysis. This is novelty and obviousness — Sections 102 and 103 — which cannot be resolved at Rule 12.

MITII’s counsel tried to correct the court:

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

But the court continued collapsing the doctrines.

Oversimplification: The Classic Alice Error

The Federal Circuit has repeatedly warned courts not to oversimplify claims:

• McRO v. Bandai: courts must not “look at them generally and fail to account for the specific requirements of the claims.”

MITII’s counsel invoked this:

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

Yet the Judge Noel Wise responded:

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

This is precisely the analytical shortcut Alice has enabled — and Big Tech has exploited.

Illegality as a Proxy for Abstractness

Judge Noel Wise repeatedly suggested the invention wasn’t 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.

MITII’s counsel correctly responded:

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

The Structural Reality: Alice = Immunity

Section 230 immunizes Big Tech from liability. Alice immunizes Big Tech from competition.

Both doctrines operate as early‑stage dismissal tools. Both doctrines disproportionately benefit entrenched platforms. Both doctrines shrink the public’s ability to assert rights.

MITII v. OpenAI shows how far this has gone — and why 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.