Number of patents invalidated by Alice drops by 23%
There has been a significant drop in the number of patents invalidated due to so-called Alice challenges since Federal Circuit rulings in Berkheimer v HP, and Aatrix Software v Green Shades Software, according to a new report.
Earlier this week, on Monday July 9, patent risk management services provider RPX, said data show that the rulings have played a role in curtailing Alice challenges in patent infringement cases[PS1] .
An Alice challenge typically arises when a plaintiff sues a defendant for patent infringement, and as a defence, the party being sued brings challenges of patent eligibility or claim validity.
It originates from the Supreme Court decision in Alice v CLS Bank, when the court held that Alice’s patent claims covered an abstract idea and that their implementation using a computer was not enough to deem that idea patentable.
According to RPX’s data, since the Berkheimer and Aatrix decisions in February 2018, courts have invalidated 46% of claims brought under Alice, which is a 23% drop from the previous figure of 69%.
RPX predicted this trend will continue.
It referred to a June 25 ruling in the case Cellspin Soft Inc v Fitbit, in which Nike Canon and GoPro were also named as defendants.
In this case, the Federal Circuit reversed the invalidation of four mobile data syncing patents using precedent from Berkheimer and Aatrix.
RPX said that for the first time, the court held the presumption of validity applies to patent eligibility under Section 101 of the US patent law.
The presumption of validity requires courts addressing patent validity challenges to presume that the patent is valid, unless the defendant can show otherwise.
“This d[PS3] ecision [Cellspin Soft Inc v Fitbit] may make it even more difficult for defendants to raise successful Alice challenges” when hit with a patent infringement suit, “as the presumption of validity brings with it a higher burden of proof,” RPX said.
“Defendants must show that a patent is ineligible by clear and convincing evidence” where the presumption applies, it added.
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