When Alice Challenges Turn on Berkheimer/Aatrix, NPE Plaintiffs Tend to Fare Worse

RPX data show that NPEs are far less successful than operating companies at blocking Alice motions under Berkheimer and Aatrix, which prevent a court from deciding an early eligibility motion when the plaintiff establishes a factual dispute over the challenged patent’s inventiveness.

For Alice decisions that issued through Q1 2020 and turned on factual disputes under Berkheimer/Aatrix, courts found sufficient facts for early resolution 62% of the time for motions against NPEs but 46% of the time for those against operating companies. NPEs fare even worse at the summary judgment stage, as courts found sufficient facts to rule in 75% of Alice summary judgment motions against NPEs—whereas for summary judgment motions against operating companies, courts found sufficient facts just 11% of the time.

More information on this and other trends affecting litigation and the patent marketplace can also be found in RPX’s recent first-quarter review.