Last week, the Federal Circuit declined to rehear en banc the Berkheimer and Aatrix Software cases handed down this past February. The Berkheimer opinion held that citation to a patent’s specification may raise questions of fact as to the inventiveness of the patent’s claims such that summary judgment is premature, while Aatrix Software bars a Rule 12 Alice decision on subject matter eligibility when factual disputes remain over a patent’s inventiveness. Together, the two decisions have raised questions about the propriety of resolving patent-eligibility disputes before the issue is tried to a jury, potentially curbing the rise in early dismissals since the US Supreme Court’s Alice decision in June 2014.