Supreme Court’s Denial of Berkheimer Appeal Leaves Alice Constraints in Place

January 17, 2020

The Federal Circuit’s February 2018 opinions in Berkheimer and Aatrix have significantly curtailed the application of Alice in district court litigation through their ruling that factual disputes over a patent’s inventiveness may preclude early dismissal under Section 101. As detailed in RPX’s latest quarterly review, Alice invalidation rates have been significantly lower since Berkheimer’s issuance, with patents challenged and adjudicated since then seeing claims cancelled over 20% less frequently. Now, with the US Supreme Court’s decision not to revisit Berkheimer, a new normal may have taken hold. Here, RPX takes a look at the latest data and the road ahead for Section 101.

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