Alice Invalidation Rate Stands at 60% Overall Despite Berkheimer Dip

RPX data show that 60% of patents have seen claims invalidated under Alice since that decision’s issuance in June 2014. Outcomes diverge based on plaintiff type; while NPE patents had an Alice invalidation rate of 65% during that period, only 52% of operating company patents saw claims cancelled.

As detailed in another recent Data Byte, Alice invalidation rates have dipped as a result of the Federal Circuit’s February 2018 decisions in Berkheimer and Aatrix, which held that dismissal may be premature under Section 101 where a plaintiff establishes a factual dispute over whether a challenged patent is sufficiently inventive under Alice’s second step. RPX data indicate that claims were cancelled from approximately 45% of patents for which Alice challenges resolved since Berkheimer was decided—down from 67% before the latter decision’s issuance.

Now that the US Supreme Court has opted not to revisit Berkheimer, a new normal may have taken hold. See RPX’s latest blog post for further analysis.

Patents Invalidated Under Alice Since the Decision’s Issuance

The X axis shows the number of patents with Alice rulings. Some percentages add up to more than 100%, as patent claims occasionally see multiple Alice rulings with different outcomes. (For example, a claim may be found not invalid in one case and invalid in another.)