Since Berkheimer, Alice Invalidation Rates Have Dipped by More than 20% at Both Rule 12 and Summary Judgment

The Federal Circuit’s February 2018 opinions in Berkheimer and Aatrix have markedly narrowed the district court application of Alice through their combined holdings that factual disputes over a patent’s inventiveness may preclude early dismissal under Section 101. The result has been a significant decline in Alice invalidation rates, which RPX data confirm is the case for Alice challenges decided through both Rule 12 and summary judgment motions—by far the most common procedural routes to raise Alice. The share of patents invalidated under Rule 12 has dropped from 70% pre-Berkheimer to 43% in the time since, while the invalidation rate from summary judgment has dropped from 59% to 38%.

In all, just under 45% of patents challenged and adjudicated under Section 101 since Berkheimer have had at least some claims invalidated under Alice—a drop of just under 23 percentage points from the period before Berkheimer’s issuance, when 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.