Alice Through The Looking Glass

It is difficult to overstate the impact of Alice Corp. Pty. v. CLS Bank International, 134 S. Ct. 2347 (2014) on the patent community. In the four and a half years prior to the Federal Circuit’s initial Alice decision, district courts addressed subject matter eligibility in only 69 decisions. Since then, subject matter eligibility has been raised in 480 cases against 1,497 patents and has generated more than 1,200 district court decisions. At the same time, the PTO has issued no fewer than 17 different guidelines for determining subject matter eligibility since Alice. This report analyzes the evolving subject matter eligibility landscape and provides insights on how Alice has impacted patent enforcement activities. Key findings include:

• Overall litigation activity, measured by both new Patent Case filings and new Patent Accusations, has decreased somewhat since Alice.
• Patents with technology classifications accounted for most of the decline in new Patent Case filings (perhaps indicating a perceived vulnerability), but § 101 Challenges are no more successful against technology patents than other patents.
• § 101 Challenges are becoming less successful over time.
• § 101 Challenges in the PTAB were declining, but have seen a recent resurgence.
• Patents that survive § 101 Challenges tend to be more successful later on.