Federal Circuit Decisions Raise Bar for Invalidating Patents on Section 101 Grounds Before Trial

February 20, 2018

Two recent Federal Circuit decisions in the U.S., both penned by Judge Moore, significantly raise the bar for accused infringers seeking to invalidate patents on § 101 grounds before trial. Although one prior Federal Circuit opinion had noted that the Supreme Court’s Alice test may implicate underlying fact issues, the Court had never previously found a genuine dispute as to material facts actually existed that was sufficient to preclude a grant of summary judgment of patent-ineligibility under Alice. Nor had the Court previously held that allegations in a complaint that a patent involves more than the mere performance of well-understood, conventional activities known in the industry could preclude a finding of invalidity at the pleadings stage. Aatrix Software, Inc. v. Green Shades Software, Inc. and Berkheimer v. HP Inc., decided less than a week apart, change that, and in doing so, have the potential to dramatically alter the landscape for how district courts resolve patent-eligibility challenges under Alice.

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