Full Federal Circuit Declines to Rehear Recent Alice-Related Decisions Berkheimer and Aatrix Software

June 3, 2018

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.

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