Alice Remains in Narrowed State as Supreme Court Considers Reviewing American Axle
June 15, 2022
The US Solicitor General recently urged the Supreme Court to review the Federal Circuit’s controversial decision in American Axle, a divided ruling that invalidated a mechanical invention for claiming a natural law—sparking further debate over the proper scope of Section 101. That recommendation by the Solicitor General makes it more likely that the Court will more broadly revisit its landmark holding in Alice and subsequent caselaw on patent eligibility. The Court’s potential return to the arena of Section 101 comes as Alice remains a less readily available defense as a result of the Federal Circuit’s February 2018 rulings in Berkheimer v. HP and Aatrix Software v. Green Shades Software.
In Berkheimer, the Federal Circuit held that factual disputes over a patent’s inventiveness may preclude courts from deciding motions for summary judgment on patent ineligibility, extending that holding shortly thereafter to motions brought under Rule 12 in Aatrix.
Post-Berkheimer, district courts are now far less likely to grant Alice motions at either stage. Although courts granted motions to dismiss under Rule 12 for 68% of patents with Alice challenges decided before Berkheimer, they have only invalidated 48% of the patents adjudicated at that stage since then. Additionally, the invalidation rate at summary judgment has dropped from 57% before Berkheimer to 42% since.
See here for more on American Axle, including the Federal Circuit’s tangled rulings on appeal and the Solicitor General’s Supreme Court brief.
