Anthony J. Fuga is a Partner in our
Chicago office.
RPX's latest quarterly review provides a
deep dive on the effects of Berkheimer and Aatrix. If you forget, the Federal
Circuit found in those two 2018 cases that Section 101 motions
– at the Rule 56 and Rule 12 stages, respectively –
should not be granted if the plaintiff properly raised a factual
dispute regarding whether the asserted patent contains an inventive
concept. Now, more than a year later, we have the data to see the
impact of those cases.
According to RPX's analysis, "district courts have as a
whole become less likely to grant Alice challenges: Since
the Federal Circuit issued its opinion in Berkheimer,
courts have invalidated at least some claims from around 46 percent
of patents challenged and adjudicated under Alice, a
significant drop—roughly 23 percent from the
pre-Berkheimer nationwide invalidation rate of 69
percent."
