Berkheimer Review Should Be Denied, Solicitor General Urges Supreme Court

  • December 13, 2019
  • Category: Patent Litigation Feature

The Federal Circuit’s February 2018 opinions in Berkheimer and Aatrix have significantly curtailed the application of Alice in district court litigation through their effective preclusion of early dismissal under Section 101. Indeed, a recent RPX analysis shows that the overall grant rate for patent eligibility challenges has fallen by more than 20% as a result. Now, as the US Supreme Court considers a petition for certiorari in the Berkheimer case, the US government has come out against further review of that holding. On December 6, Solicitor General Noel Francisco filed an amicus brief arguing that certiorari should be denied because this case addresses mainly procedural aspects of Section 101. Rather, the government argues that the Court should instead grant review of a case for which substantive eligibility standards are at issue “and then address any ancillary issues that remain”.


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