Half of Operating Company Patents Survive Alice Challenges, with Two Thirds Cancelled for NPEs
January 8, 2020
RPX data show that district courts invalidate operating company patents under Alice about half of the time, counted by patents litigated by operating company plaintiffs that have been challenged and adjudicated under Section 101. NPEs tend to fare somewhat worse, with courts cancelling their patents as ineligible about two thirds of the time.
However, while Alice remains a key defensive tool for companies accused of patent infringement, it has been narrowed by the Federal Circuit’s February 2018 decisions in Berkheimer and Aatrix, which held that dismissal under Alice may be premature where a party raises questions of fact as to a patent’s inventiveness. Since those decisions, the overall Alice invalidation rate has fallen by more than 20%, as shown in a recent RPX analysis.
