Patents Invalidated Under Alice Before and After Berkheimer by Procedural Stage

RPX data shows that Section 101 invalidation rates have dropped significantly since the Federal Circuit issued its February 2018 decisions in Berkheimer and Aatrix, holding that the resolution of Alice motions may be premature where a party raises questions of fact as to a patent’s inventiveness.

A breakdown of subsequent decisions by procedural stage shows that invalidation rates for Rule 12 and summary judgment Alice challenges (by far the two most popular avenues for raising Section 101 issues) have declined by around 20% since the issuance of Berkheimer. The invalidation rate for patents challenged and adjudicated under Rule 12 has dropped from around 70% to 45%, while the invalidation rate for patents challenged at the summary judgment stage has dipped from 59% to 40%. The graph below illustrates this change.

Why RPX?

At RPX, we believe that the best defense is a good offense. That’s why since our inception in 2008, we’ve purchased rights to over 47,500 patent assets to mitigate patent risk for our members. As one of the most active participants in the patent market, RPX has compiled proprietary data on thousands of litigations and patent transactions. With RPX, companies have access to reliable information about the patent market, helping them to better understand this constantly changing landscape. Through our data and research on patent litigation and the patent marketplace, we’re able to provide our members with the most complete view of the current picture.

As the patent litigation landscape continues to change, RPX will keep innovating and staying ahead of the future risks our members face. Contact us today to find out how RPX can help your company manage patent risk at every level.