The Federal Circuit’s February 2018 opinions in Berkheimer and Aatrix have caused a significant shift in the way that district courts approach Section 101. By holding that factual disputes over a patent’s inventiveness may preclude early dismissal under Alice, those decisions have since caused grant rates for patent eligibility challenges to drop by more than 20%, as detailed in a recent RPX report. Berkheimer’s elevation of subsidiary factual questions in the Section 101 analysis—historically viewed as primarily a question of law—has also raised questions about the factfinding role juries will play in the adjudication of Alice challenges not resolved until trial. Now, an eligibility dispute just resolved by District Judge Rodney Gilstrap confirms that courts may be willing to entrust juries with 101-related factual issues after all. On September 12, shortly after denying summary judgment under Alice due to a factual dispute under Berkheimer, Judge Gilstrap put that dispute before a jury, which found that the challenged claims were “well-understood, routine, and conventional”, as argued by defendant Jack Henry. The following day, Judge Gilstrap issued a final judgment against plaintiff PPS Data LLC in which he invalidated the claims under Alice in light of that verdict.
