My partner Anthony Fuga is providing excellent analysis on the latest Section 101 cases and issues at the Holland & Knight Section 101 Blog, which he edits and does a substantial amount of the writing for. His latest post provides valuable insight into how district courts are approaching Section 101 cases since the Federal Circuit’s Berkheimer and Aatrix decisions based upon a recent RPX study. It is reposted below, with permission and cross-posted on my Chicago IP Litigation blog:

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 [down] from the pre-Berkheimer nationwide invalidation rate of 69 percent.”

RPX also provides a breakdown of those decisions by the procedural stage, looking at both motions to dismiss and motions for summary judgment. At the Rule 12 stage, “the invalidation rate for patents challenged and adjudicated under Rule 12 – where a court has invalidated at least some claims – has dropped from around 70 percent to 45 percent.”

RPX provides further analysis and helpful charts to dig deeper into the Berkheimer/Aatrix effect, along with discussing the uptick in non-practicing entity activity, a PTAB update, the patent marketplace and more.

The entire review is worth reading and can be found here.