Alice’s Post-Berkheimer Decline Continues, with Summary Judgment Hit the Hardest
October 23, 2019
RPX data shows that Section 101 invalidation rates have remained significantly lower since the Federal Circuit’s February 2018 decisions in Berkheimer and Aatrix, which held that dismissal under Alice may be premature where a party raises questions of fact as to a patent’s inventiveness.
For Alice decisions issued after Berkheimer, the percentage of patents invalidated at the Rule 12 stage has remained about the same since Q2—standing at about 45% near the end of the third quarter, down from 70% before Berkheimer’s issuance.
However, the post-Berkheimer invalidation rate at the summary judgment stage slightly declined in the third quarter, settling at around one third (dropping from 40% at the end of Q2 to 36%). That contrasts starkly with the summary judgment invalidation rate from the period before Berkheimer, when about 59% of patents saw at least some claims invalidated at that stage.
The Federal Circuit has also continued to place restraints on Alice, holding in MyMail v. ooVoo that courts must address claim construction disputes before ruling on Section 101 challenges. Meanwhile, momentum has been growing in Congress for a draft bill that seeks to entirely eliminate Alice and other patent eligibility caselaw.
For more details, see our latest blog post: “Q3 in Review: Litigation Ticks Upward as Alice Downturn Continues”.
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