Section 101 Decisions Clarify ‘Clear And Convincing Evidence'

Since the U.S. Supreme Court's decision in Alice Corp. v. CLS Bank International,¹ many practitioners have been confused about whether the presumption of validity and proof by clear and convincing evidence still apply when a patent has been challenged under § 101, particularly at the pleadings stage. But in a series of three recent Federal Circuit decisions—Berkheimer v.  HP Inc.,² Aatrix Software Inc v. Green Shades Software Inc.³ and Exergen Corp. v. KAZ USA Inc. ⁴—the Federal Circuit appears to have brought some needed clarity to this question.

Prior to Supreme Court review in Alice, the Federal Circuit's fractured en banc analysis⁵ suggested that the presumption of validity applied to all patent eligibility challenges. In particular, while failing to command a majority, some of the court's judges stated that an allegation that a patent covered ineligible subject matter had to be proven by "clear and convincing evidence" and most agreed that the statutory