Litigants Wielding Alice Succeed More Often When Challenging Patents Asserted by NPEs

RPX data on patent eligibility show that defendants succeed more often against NPEs when arguing that patents asserted against them are invalid under Alice, the Supreme Court’s June 2014 ruling on patent eligibility.

Following that decision’s issuance, NPE-asserted patents challenged under its rationale have fared worse than those litigated by operating companies. Of the NPE patents adjudicated since then, 63% had all challenged claims invalidated, compared to 48% for operating company patents.

Patents Invalidated Under Alice by Plaintiff Type (District Court)

Note: 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. Data as of April 10, 2022.

The Alice defense has proven controversial among some stakeholders, though, in part due to questions over its reach as well as the difficulty that courts have faced in applying it consistently. That includes the Federal Circuit, which in recent years has become split over the extent to which Alice should be applied for mechanical inventions. One such ruling—the court’s divided opinion in American Axle Manufacturing v. Neapco—could soon lead the Supreme Court to finally revisit Alice. On May 19, more than a year after the Court issued a Call for the Views of the Solicitor General (CVSG) in the American Axle appeal, US Solicitor General Elizabeth B. Prelogar filed a brief on behalf of the government recommending that certiorari be granted in part, a step that greatly increases the chances that the Court will move forward, at least according to a recent empirical analysis.

See RPX Insight for more on Alice, including additional data on district court eligibility challenges and a deep dive on American Axle, including the Federal Circuit’s tangled rulings on appeal and the Solicitor General’s Supreme Court brief.