Operating Company Patents Have Largely Resisted Alice in 2020

RPX data show that NPE and operating company patents fared quite differently for Alice challenges decided in the first half of 2020. While 60% of NPE patents adjudicated under Alice in that period had all claims invalidated, just 15% of operating company patents had claims invalidated.

However, it is also worth noting that individual orders can skew the numbers to a greater extent when considering invalidation rates within a shorter period of time—particularly since courts often address multiple patents in a single ruling. For instance, nearly half of the operating company patents that saw Alice rulings in the first half of 2020 were considered in just two decisions, both of which declined to invalidate the patents, and one of which addressed a group of patents belonging to the same family.

More broadly, RPX data reveal that the overall decline in Alice invalidation rates triggered by the Federal Circuit’s Berkheimer and Aatrix decisions has persisted—narrowing a key offramp for defendants hoping for an early exit from litigation.

See RPX’s second-quarter review for more details on this and other recent trends affecting patent litigation.