Alice in 1H 2021: Breaking Down the Post-Berkheimer Status Quo

RPX has detailed in recent years how the Federal Circuit’s 2018 Berkheimer and Aatrix decisions have limited courts’ ability to grant early patent eligibility challenges brought under Alice, causing a significant drop in the Alice invalidation rate. That lower rate has essentially become the status quo for defensive eligibility motions: for Alice motions decided since Berkheimer and through Q2 2021, courts have invalidated all challenged claims 47% of the time, compared to 65% before Berkheimer. The overall Alice invalidation rate, from the decision’s issuance through Q2, is 58%. Patents asserted by NPEs have been invalidated 65% of the time in that timeframe, in contrast to 48% for those wielded by operating companies.

Limiting this analysis to Alice motions adjudicated in the first half of 2021 results in a 61% invalidation rate during that period. Moreover, as shown below, the data diverge by plaintiff type: patents asserted by NPEs were invalidated 77% of the time, versus 46% for patents litigated by operating companies.

For more on Alice and other patent litigation trends, see RPX’s second-quarter review.