New PatentlyO Law Journal Article: Alice at Five

New PatentlyO Law Journal article by Jasper L. Tran (Jones Day) and J. Sean Benevento. This article builds on Mr. Tran’s prior work Two Years After Alice v. CLS Bank. 98 Journal of the Patent and Trademark Office Society, 354 (2016).

Abstract: This paper updates the statistics on the five years after Alice v. CLS Bank and discusses 19 Federal Circuit cases (including their exemplary patent claims) that found eligibility upon Alice challenges. The Alice invalidation rate at the Federal Circuit and district courts has lowered over time, averaging cumulatively 56.2% at its near-five-year mark.

From the Introduction:

Alice Corp. v. CLS Bank Int’l (commonly known as “Alice”) is no stranger to IP readers and needs little introduction. Briefly, the Supreme Court five years ago decided Alice and raised the patentability standard for (mostly) computer-implemented inventions under 35 U.S.C. § 101, such that implementing an abstract idea on a computer is insufficient to transform that idea into patentable subject matter.  At the time, a Supreme Court justice even considered Alice a “minor case” in following its prior § 101 framework set forth in Mayo Collaborative Servs. v. Prometheus Labs., Inc. two years earlier.

But the reality has been the opposite – Alice has been a major force in patentability determinations under § 101.

For example, in the first month and a half following Alice’s release, 830 patent applications were withdrawn from the USPTO. At Alice’s one-year anniversary (June 19, 2015), lower courts (namely district courts, the Patent Trial and Appeal Board (“PTAB”), and the Federal Circuit) applied Alice to invalidate or reject software-based patent claims at an average invalidation rate of 82.9%: 69.7% at the district courts and 94.1% at the Federal Circuit. At Alice’s two-year mark (June 19, 2016), the numbers were slightly lower, at an average cumulative invalidation rate of 78.2%: 66.5% at the district courts and 92.3% at the Federal Circuit. Near the five-year mark (as of March 1, 2019), the cumulative numbers, as shown in Table 1, were even lower (though still the majority); the average cumulative invalidation rate was 56.2%: 53.7% at the district courts and 76.3% at the Federal Circuit.

Read Jasper L. Tran & J. Sean Benevento, Alice at Five, 2019 PatentlyO L.J. 25 (2019).

Prior Patently-O Patent L.J. Articles:

  • Bernard Chao, Implementing Apportionment, 2019 PatentlyO L.J. 20 (Chao.2019.ImplementingApportionment)
  • Jeremy C. Doerre, Is There Any Need to Resort to a § 101 Exception for Prior Art Ideas?, 2019 PatentlyO L.J. 10. (2019.Doerre.AnyNeed)
  • Colleen V. Chien, Piloting Applicant-Initiated 101 Deferral Through A Randomized Controlled Trial, 2019 Patently-O Patent Law Journal 1. (2019.Chien.DeferringPSM)
  • David A. Boundy, Agency Bad Guidance Practices at the Patent and Trademark Office: a Billion Dollar Problem, 2018 Patently-O Patent Law Journal 20. (Boundy.2018.BadGuidance)
  • Colleen Chien and Jiun-Ying Wu, Decoding Patentable Subject Matter, 2018 PatentlyO Patent Law Journal 1.
  • Paul M. Janicke, Patent Venue: Half Christmas Pie, And Half Crow, 2017 Patently-O Patent Law Journal 13. (Janicke.2017.ChristmasPie.pdf)
  • Paul M. Janicke, The Imminent Outpouring from the Eastern District of Texas, 2017 Patently-O Patent Law Journal 1 (2017) (Janicke.2017.Venue)
  • Mark A. Lemley, Erik Oliver, Kent Richardson, James Yoon, & Michael Costa, Patent Purchases and Litigation Outcomes, 2016 Patently-O Patent Law Journal 15 (Lemley.2016.PatentMarket)
  • Bernard Chao and Amy Mapes, An Early Look at Mayo’s Impact on Personalized Medicine, 2016 Patently-O Patent Law Journal 10 (Chao.2016.PersonalizedMedicine)
  • James E. Daily, An Empirical Analysis of Some Proponents and Opponents of Patent Reform, 2016 Patently-O Patent Law Journal 1. (Daily.2016.Professors)
  • Tristan Gray–Le Coz and Charles Duan, Apply It to the USPTO: Review of the Implementation of Alice v. CLS Bank in Patent Examination, 2014 Patently-O Patent Law Journal 1. (GrayLeCozDuan)
  • Robert L. Stoll, Maintaining Post-Grant Review Estoppel in the America Invents Act: A Call for Legislative Restraint, 2012 Patently-O Patent Law Journal 1 (Stoll.2012.estoppel.pdf)
  • Paul Morgan, The Ambiguity in Section 102(a)(1) of the Leahy-Smith America Invents Act, 2011 Patently-O Patent Law Journal 29.  (Morgan.2011.AIAAmbiguities)
  • Joshua D. Sarnoff, Derivation and Prior Art Problems with the New Patent Act, 2011 Patently-O Patent Law Journal 12 (sarnoff.2011.derivation.pdf)
  • Bernard Chao, Not So Confidential: A Call for Restraint in Sealing Court Records, 2011 Patently-O Patent Patent Law Journal 6 (chao.sealedrecords.pdf)
  • Benjamin Levi and Rodney R. Sweetland, The Federal Trade Commission’s (FTC) Recommendations to the International Trade Commission (ITC):  Unsound, Unmeasured, and Unauthoritative, 2011 Patently-O Patent Law Journal 1 (levi.ftcunsound.pdf)
  • Kevin Emerson Collins, An Initial Comment on King Pharmaceuticals: The Printed Matter Doctrine as a Structural Doctrine and Its Implications for Prometheus Laboratories, 2010 Patently-O Patent Law Journal 111 (Collins.KingPharma.pdf)
  • Robert A. Matthews, Jr., When Multiple Plaintiffs/Relators Sue for the Same Act of Patent False Marking, 2010 Patently-O Patent Law Journal 95 (matthews.falsemarking.pdf)
  • Kristen Osenga, The Patent Office’s Fast Track Will Not Take Us in the Right Direction, 2010 Patently-O Patent L.J. 89 (Osenga.pdf)
  • Peter S. Menell,  The International Trade Commission’s Section 337 Authority, 2010 Patently-O Patent L.J. 79
  • Donald S. Chisum, Written Description of the Invention: Ariad (2010) and the Overlooked Invention Priority Principle, 2010 Patently‐O Patent L.J. 72
  • Kevin Collins, An Initial Comment on Ariad: Written Description and the Baseline of Patent Protection for After-Arising Technology, 2010 Patently-O Patent L.J. 24
  • Etan Chatlynne, Investigating Patent Law’s Presumption of Validity—An Empirical Analysis, 2010 Patently-O Patent L.J. 37
  • Michael Kasdan and Joseph Casino, Federal Courts Closely Scrutinizing and Slashing Patent Damage Awards, 2010 Patently-O Patent L.J. 24 (Kasdan.Casino.Damages)
  • Dennis Crouch, Broadening Federal Circuit Jurisprudence: Moving Beyond Federal Circuit Patent Cases, 2010 Patently-O Patent L.J. 19 (2010)
  • Edward Reines and Nathan Greenblatt, Interlocutory Appeals of Claim Construction in the Patent Reform Act of 2009, Part II, 2010 Patently‐O Patent L.J. 7  (2010) (Reines.2010)
  • Gregory P. Landis & Loria B. Yeadon, Selecting the Next Nominee for the Federal Circuit: Patently Obvious to Consider Diversity, 2010 Patently-O Patent L.J. 1 (2010) (Nominee Diversity)
  • Paul Cole, Patentability of Computer Software As Such, 2008 Patently-O Patent L.J. 1. (Cole.pdf)
  • John F. Duffy, The Death of Google’s Patents, 2008 Patently O-Pat. L.J. ___ (googlepatents101.pdf)
  • Mark R. Patterson, Reestablishing the Doctrine of Patent Exhaustion, 2007 Patently-O Patent L.J. 38
  • Arti K. Rai, The GSK Case: An Administrative Perspective, 2007 Patently-O Patent L.J. 36
  • Joshua D. Sarnoff, BIO v. DC and the New Need to Eliminate Federal Patent Law Preemption of State and Local Price and Product Regulation, 2007 Patently-O Patent L.J. 30 (Download Sarnoff.BIO.pdf)
  • John F. Duffy, Are Administrative Patent Judges Unconstitutional?, 2007 Patently-O Patent L.J. 21. (Duffy.BPAI.pdf)
  • Joseph Casino and Michael Kasdan, In re Seagate Technology: Willfulness and Waiver, a Summary and a Proposal, 2007 Patently-O Patent L.J. 1 (Casino-Seagate)

44 thoughts on “New PatentlyO Law Journal Article: Alice at Five

  1. 6

    There is a possible test or valid argument for how bad for the economy [versus litigation cost reduction] Alice 101 rejected patent claims actually are. It would be to identify specific patents with asserted claims that would clearly NOT have lost in litigation on some OTHER grounds (such as 103 or 112) if they had been allowed a full trial and its appeal rather than given a preliminary pre-trial disposal on 1o1. As noted earlier, Senator Tillis cited the Chamberlain wireless door open signal patent, and there must be better examples than that of patent claims that deserved a full trial instead of a 101 rejection? Can such good examples be provided?
    [The prior Senate hearings on proposed patent litigation were dominated by pharma and diagnostic company interests in eliminating Mayo, with less coverage of Alice. And that draft bill would even seem to apply 112(f) to many claims now subject to Alice to drastically narrow or invalidate them?]

    1. 6.1

      There might be a handful of “good” examples, Paul. But as everybody knows, most of the cr @p tanked under 101 is properly tanked because all of the alleged “non-obviousness” lies only in the “new” abstraction (e.g., data content descriptors) appended to old (indeed, ancient) data processing tech.

      The bottom line is the economic benefits to the public of keeping this ridiculous g-@rbage out of the system vastly outweigh the benefits of handing out j-u-nk entitlements to the Silly Con Boys, grifters, the genius wives of patent attorneys, etc. Of course, this assumes that you don’t crave some sort of authoritarian plutocracy where we all genuflect before the 0.1% and equate “progress” with the extent of wealth and power hoarded by those people.

      1. 6.1.1

        appended to old (indeed, ancient) data processing tech.

        Sort of like old (indeed, ancient) protons, neutrons, and electrons…


          Actually it’s not like that at all, Bildo.

          No wonder you have difficulty understanding what Mayo and Alice were about.

  2. 5

    Those percentage invalidity numbers shock the conscious. Name another federal agency whose work product is invalid when challenged at +80%? The”thing speaks for itself,” the patent system is broken and needs a legislative fix. And by broken I mean SCOTUS has reverted to form – the ‘gist or heart of the invention’ test specifically abolished by the ’52 Act is back and swallowing up patent law – again. Sad. I haven’t read the legislative fix in the pending legislation, but would it include “this time we mean it” to SCOTUS?

    1. 5.1

      but would it include “this time we mean it” to SCOTUS?


      Congress could employ its Constitutional power of jurisdiction stripping of the non-original jurisdiction of patent appeals from the Supreme Court.

      Of course, given how tainted the CAFC is, I would also recommend reforming that “highest patent court” with new (and pro-innovation) judges – since the Marbury case dictates that there be some Article III review capability.

    2. 5.2

      I haven’t read the legislative fix in the pending legislation, but would it include “this time we mean it” to SCOTUS?

      I agree entirely that Congress needs to fix the problem, this time in a manner that the Court cannot re-make the mess. To my mind, the right way for Congress to “tie the Court’s hands,” so to speak, is to amend Title 28 to remove the CAFC from the SCotUS’ certiorari and mandamus jurisdictions. In other words, strip the SCotUS of the power to review CAFC judgments. The CAFC would then become the last word on patent cases.

      At this point, I will note that Night Writer usually voices a complaint that the CAFC is (to his way of thinking, and the thinking of some others about these parts) badly corrupted with Obama appointees. He believes that the CAFC needs to be abolished and reformed with a different set of judges to fix the mess properly. I would like to take a moment to point out why this is not a workable plan.

      Art. III, §1 of the Constitution provides that “[t]he judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” In other words, having once been confirmed for a seat on the CAFC, all of the incumbent judges can only be removed from this office by impeachment. That is why, when Congress ended the CCPA and CFC back in 1981, they created the CAFC as a successor court, so that they would not have to impeach all of the incumbent CCPA & CFC judges.

      How likely is it that one can convince the Senate to vote—by a two thirds majority—to remove all of these judges that they have previous confirmed by at least a majority vote? The only “crime” of these judges is that they have followed—by their best lights—the precedents handed down to the them by the SCotUS—which is exactly what they were supposed to be doing. Candidly, I just do not see how one is going to pull it off, to impeach and remove all of these judges. That is just too heavy a lift.

      Two final thoughts, then, on this point: (1) probably, it is really unnecessary to reform the CAFC. The sorts of judgments that the old CCPA and the pre-Alice CAFC rendered are the sort of judgments that emerge from a body of jurists who spend every day thinking about patents. If you leave the CAFC alone (without regular beat-downs from the SCotUS), a State Street outlook is the sort of equilibrium to which the CAFC will naturally return. (2) If you really feel that it is necessary to hasten along such an outcome, then rather than removing judges (too hard to do, as noted above), the better path is just to double the size of the active judge contingent in the CAFC, and fill the new openings with appointees selected by Prof. Adam Mossoff.

      1. 5.2.1


        Your view only holds if the CAFC as a body is maintained.

        That is not mandatory.

        Congress can fully form a brand new Article III Patent Court.

        No need then of any such “impeachment” efforts. Both the Supreme Court and the (tainted**) CAFC are relieved of their patent review duties, and a new Article III court formed for that review (thereby preserving Marbury).

        **Sorry, but the taint from the SC beatdowns is TOO established. See my past psychological thought experiment on training simians in a cage with a fire hose.

      2. 5.2.2

        As ridiculous as he sounds, Greg is correct about the court packing.

        Go for it, dudes!


        Another alternative would be to get rid of the in-s-an-e lifetime appointment paradigm for judges.

      3. 5.2.3

        If you really feel that it is necessary to hasten along such an outcome, then rather than removing judges (too hard to do, as noted above), the better path is just to double the size of the active judge contingent in the CAFC, and fill the new openings with appointees selected by Prof. Adam Mossoff.

        Another way forward would be to leave the CAFC in place with its present jurisdiction over government employment cases, Bureau of Indian Affairs disputes, customs cases, and court of federal claims appeals. The patent jurisdiction could be moved to another court (the Circuit Court of Patent Appeals, or CCPA, for example), and one could start fresh on the composition of this court, even as the judges of the present CAFC remain on the CAFC, only with a smaller case load.

        I see two reasons why this is not going to work. First, it involves creating a new court with a new budget. Granted that this budget will not be especially large, but I am skeptical that there will be any great enthusiasm to create a whole new budget line item.

        Second, and more importantly, our court system works on precedent. Creating a new court without a body of precedent to apply is awkward and unpredictable in the worst sense of the word. The relevant stakeholders will be made nervous by this lack of precedent. By contrast, when the CCPA & CFC were merged into the CAFC, the bodies of precedent of the two predecessor courts came along, so that there was no disruption or unpredictability. I think that large industry players would lobby hard against the idea of creating a court unbound by any precedent except the SCotUS’, and free to make up any old ideas along the way.

    3. 5.3

      Definitely if too much sausage
      is rejected we need to expand the system to include more sources of tainted meat and make it more difficult to reject the finished product!

      Americans LOVE tainted meat! It’s a symbol of freedom, and not just a way for rich people to get richer without silly hassles from “scientists” and “people in the art who know what they are talking about”!!

      1. 5.3.1

        You confuse “scientists” and “people in the art who know what they are talking about” with lemmings and the established Big Corp (who coincidentally mirror your 1 percenters).

        But then again, why let facts get in the way of your feelings?

    4. 5.5

      Neither these or any other valid statistics show anything like 80% invalidity of PTO issued patents. As noted at 1 below these are asserted [and early] outcome percentages for only the relatively small number of applications and patents against which Alice 101 application rejections or litigation motions were actually applied.

    5. 5.6

      Name another federal agency whose work product is invalid when challenged at +80%? The”thing speaks for itself,” the patent system is broken and needs a legislative fix.

      Er, but that +80% figure is already stale. If the 80% figure bespeaks a need for a fix, what should we conclude from the fact that the rate has fallen to 56%?

  3. 4

    Recognizing the validity of a patent claim violates my client’s deeply held religious beliefs.

    So tough luck patent holders! Religious freederp is sooooooo important, y’all, but especially if you are a sincere white straight bro. Y’all gotta understand this, especially in East Texas.


    “Clearly what the derp Framers intended derp!”

  4. 3

    Near the five-year mark (as of March 1, 2019), the cumulative numbers, as shown in Table 1, were even lower (though still the majority); the average cumulative invalidation rate was 56.2%…

    This reversion to mean is rather to be expected. In the immediate aftermath of Alice being handed down, defendants rushed to raise Alice defenses against claims then being asserted. Because there were a lot of Alice-susceptible claims being asserted back then, a heavy chunk of them (82.9%, evidently) failed.

    There were two natural responses to this development. First, owners of business-method software claims learned not to bother asserting them (why run up the legal fees for so little likelihood of success?). Second, defendants in cases that had less direct applicability to Alice gathered the impression that Alice defenses were easy to win, and therefore even defendants in these other cases began making Alice arguments. The net result of fewer Alice-relevant claims being asserted and more weak-analogy Alice arguments being made is that the overall success of Alice challenges began dropping.

    We saw the same dynamic play out in the immediate advent of IPRs as well. When IPRs first came online, litigants were so worried about the potential estoppel effects that the only folks willing to petition for IPR were defendants with lead-pipe-cinch invalidity arguments. As a result, the first 100 or so IPR decisions were complete wipe-outs for the patentees. This in turn gave rise to the (reasonable at the time) view that IPRs are “death panels.” This (mis)impression convinced a host of folks with only fairly marginal invalidity arguments to petition for IPR, and the result was that the rate of invalidation dropped considerably, until we have reached the present state in which IPRs find invalidity at basically the same rate as district courts.

    In other words, this is mostly just trick of timing, in which good information has to chase out bad information from the marketplace of ideas. Always bet on a reversion to mean as the long-term equilibrium.

    1. 3.1

      The “bad information” presumably being the CAFC’s State Street Bank opinion, the assertion that data/logic is “the essence of electronic structure”, and the poorly written, fake and nonsensical “holding” of Diehr that the maximalists tried running with until they ran into the brick wall of reason.

      So … when do we return to the mean? Last time I checked there were a couple of industry blogs out there still pumping out the misinformation 24-7.

    2. 3.2

      Maybe Greg, but maybe not. “Public choice” theory in the end will be the dominating factor, and here it will have unintended consequences. That being more low quality patents that issue thereby providing more patents for the PTAB to invalidate. Consider if PTO had a perfect QC – and only perfect and unquestioned meritorious patents issued, PTAB would be out of work, and since it is contained within the PTO itself, that would diminish the reach and scope of the PTO itself. Under public choice theory, the sub-chapter here being – an Agency will always seek to expand and grow it’s subject matter jurisdiction – the PTAB creates the reverse incentive to lower the QC of the patents on first issue. Therefore, the equilibrium to be reached, will be the optimum for the Agency, here, the PTO, not the PTO customers. Hence continued disrupted patent system, as a system optimized for max Agency power, not a stable system that serves the public interest.

      1. 3.2.2

        I worry about this too, Iwasthere. The incentives facing a PTO director are not good. The revenue maximizing pathway is always to be forgiving in what sort of claims you let go to grant, which means that there will always be a new flood of claims deserving to get tanked coming on line with each new year. I really do not know how one solves this problem, except by regular exhortations to virtue (which history shows to be a rather weak solution).

        Public choice theory tells us that we should not expect too much from a patent examination system. Perhaps it is no surprise, then, that examination systems the world over tend to work only so well (although they all seem to work better than registration systems).


          The patent system worked just fine for almost two centuries without a zillion patents on logic and information.

          Not sure what’s “impossible” about fixing the system in a very big way by expunging those patent claims … unless your concern is really about not offending those rich bros in Silly Con Valley and East Texas at any cost.


            You are aware that “software” is NOT the first “villain” in the “Patents are Bad” mantra throughout history, right?

            Your feelings merely against one form of innovation are noted.



          You seem to miss the point on the entreaties for a registration system.

          The entreaties have to do with BOTH the “quality” of granted patents AND the costs of BOTH the system footed entirely by innovators (to the tune of several Billion dollars annually), AGAINST the litigation costs born by both innovators and supposed (or at least accused) infringers.


            It’s not clear what the phrase “footed entirely by the innovators” means?

            Exactly what is “footed” and exactly who are the “innovators” who are doing all of that “footing”?

  5. 2

    Alice was a “minor case” in the sense that it didn’t upend the existing principles (already affirmed in Mayo and Bilski) which already precluded the patenting of “new” logic/information in the context of a pre-existing logic processing apparatus.

    All Alice did was take the CAFC’s ludicrous take on the matter and throw it into the trash where it belongs.

    Reminder: software patenting always has been and remains an exception to the law. There was never a rational defensible legal argument for permitting it in the context of existing law. The exception was carved out of thin air, predicated on a l-i-e, just because a few rich white bros wanted to create an entitlement for a “special” subset of their fellow rich white bros. In real time, people in the art objected to this radical change and could see that a Pandora’s box had been opened. And the system is still struggling to deal with that disastrous choice, decades later.

    Alice was just a lifeline in a hurricane. The greedy p-I-g-s out there who want to “own” correlations and logic aren’t going to give up easily because they all want to be the next lottery winner. Of course they don’t care about anything or anybody else (“get your own patent, crybaby!”) and of course they aren’t going to pursue their goals honestly or democratically. They know what’s best, after all! Because otherwise they wouldn’t be near the top of the pyramid already. Right? So it goes …

    1. 2.1

      Reminder: software patenting always has been and remains an exception to the law.

      You do realize that you are absolutely incorrect on this point, right?

      I provided you with a direct and simple English explication as to why.
      I invited your participation in a dialogue on that Simple Set Theory explication.
      I invited your participation again.
      and again,
      and again,
      in fact, at this point in time, it may not be an exaggeration that I invited your more than a thousand times.

      I provided you direct hyperlinks (since the discussion was on the Hricik side of the blog).
      Heck, I even reprinted the entire presentation for you on this side of the blog.
      More than once.

      You have never engaged on the merits of that simple and direct English explication.

      All you do — all you EVER do — is pound the table of your feelings.

      (and my, what feelings those are: yet again you play the R card with “white”….?)

      and of course they aren’t going to pursue their goals honestly or democratically. They know what’s best, after all!” – Your Accuse Others Trump-like meme is showing.

      1. 2.1.1

        Nobody cares about what you believe that you “provided”, Bildo. Go swim in a t-o-ilet.

        One correction: all of the CAFCs incomprehensible post Alice contortions made me forgot for a moment that the en banc CAFC actually found Alice’s claims ineligible as well.

      2. 2.1.2

        The fact that logic and instructions, described in logical or functional terms, has no objective physical structure is not a “feeling”, Bildo.

        Nor is it a “feeling” when one observed correctly that when you claim “old thing plus ineligible abstraction” you are protecting that abstraction in the prior art context of the old thing.

        There’s no debate about these things. Pretending otherwise or failing to acknowledge these facts is something that you and your glibertarian Re-p-u-k-k-ke cohorts do on a regular basis, just as you pretend that the political realities and alignments also don’t exist.

        You’re truly an @ -h-0-le and so is Big Jeans and so is anyone associated with either of you in any way. There isn’t a whole lot more to be said.


          is anyone associated with either of you in any way

          LOL – how Trump of you.

          Your rants are actually comical in how much you resemble the very person that you so deeply despise.


            Your history of projection is well-documented, Bildo, as is your obfuscation and denial of reality.


            I didn’t invent the correlation between patent maximalism and glibertarian/Rep-u-k-k-k-e tendencies. Those correlations simple revealed themselves. The number of progressives who believe that we should be handing out patents on correlations to tr-0-lls and pharma is miniscule, for very easy to understand reasons. The few exceptions are also easy to understand. Likewise, the glibertarian “mind” and that of the patent maximalist are a perfect match once you appreciate that the inbred apparent hypocrisy is deemed to be a feature and not a bug within those communities.


              Your history of projection is well-documented, Bildo, as is your obfuscation and denial of reality.

              Says the guy whose number one meme is Accuse Others Of That Which Malcolm Does.


              All else that you wrote is mindless muddle to throw anything that you don’t like into one bucket.

              (and yes, you did not invent that either, but so what?)

    2. 2.2

      Not to agree that Alice was a “minor case” in the sense that it didn’t upend the existing principles (already affirmed in Mayo and Bilski)..” But it is worth noting [where the real money is?] that the recently proposed Senate patent legislation would completely overrule Mayo, etc., but not Alice, and force many Alice cases into 112(f) claim narrowing or fatality.

  6. 1

    Would not these percentages be even more interesting as percentages of all applications and all litigated patents, instead of just those applications and patent suits in which Alice 101 rejections or defenses were both raised and decided? For example, if I read the litigation case numbers here correctly it would seem that far more litigated patents are being invalidated by IPRs?

    1. 1.1

      Thanks, we’ll keep that in mind for our next study. To the extent this is helpful, FN11 states: “If calculated by the number of patents invalidated at the district courts and the Federal Circuit between July 2014 and April 2019, the invalidation rate is 65.4%, or 615 patents invalidated out of 1292 patents total.”

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