Alice Invalidation Rates Remain More than 20% Lower Since Berkheimer

The Federal Circuit’s February 2018 opinions in Berkheimer and Aatrix have significantly trimmed the application of Alice in district court litigation through their combined rulings that a factual dispute over a patent’s inventiveness may preclude early dismissal under Section 101. The result has been a significant drop in Alice invalidation rates. RPX data reveal that just under 45% of patents challenged and adjudicated under Section 101 since Berkheimer had at least some claims invalidated under Alice—a 23% drop from the period after Alice and before Berkheimer, during which time around 67% of patents had claims cancelled.

Now that the US Supreme Court has decided not to revisit Berkheimer, a new normal may have taken hold. See RPX’s fourth-quarter review for further analysis.

Patents Invalidated Under Alice Before and After Berkheimer

Data are current as of January 7, 2020. Some percentages add up to more than 100%, as patent claims occasionally see multiple Alice rulings with different outcomes. (For example, a claim may be found not invalid in one case and invalid in another.)