The Supreme Court Has Again Declined to Revisit Section 101, While Alice’s Post-Berkheimer Dip Persisted in Q3 2020

The US Supreme Court handed defendants a major defensive tool through its landmark 2014 Alice decision, but, as RPX’s latest quarterly report explains more fully, the nation’s highest court has stepped back even as the Federal Circuit nudged the pendulum toward patent owners.

In particular, the Supreme Court has repeatedly denied certiorari for a series of petitions challenging various aspects of the Alice test and decisions applying it—most recently, declining on October 5 to revisit the Federal Circuit’s controversial ruling in Chamberlain Group v. Techtronic Industries, commonly referred to as the “garage door” case. Some stakeholders have flagged this decision as highlighting the need for legislative Section 101 reform.

The Court’s denial of that petition follows its January 2020 decision not to review the Federal Circuit’s 2018 rulings in Berkheimer and Aatrix, which have arguably done the most of any subsequent appellate decisions to limit the practical applicability of Alice. In those cases, the Federal Circuit held that courts may not grant early dismissal under Alice when a patent owner establishes a material factual dispute over a patent’s inventiveness.

The result has been a significant drop in Alice invalidation rates, which stood at around 67% before Berkheimer but have now dropped to 43% for decisions issued since Berkheimer and through Q3—a stark reminder of how the Federal Circuit’s decision has limited Alice’s potency.

See RPX’s third-quarter review for additional analysis of how Berkheimer has impacted Alice, and for detailed coverage of various other trends affecting patent litigation and the patent marketplace.