Intellectual Property Partner Anthony Fuga was quoted in a Law360 article about two decisions that appear to have improved the chances that patents will survive Alice. The Federal Circuit said in a case known as Berkheimer that a lower court judge wrongly granted summary judgment invalidating a patent under Alice. Later the same month, in a decision known as Aatrix, the appeals court similarly faulted a judge for granting a motion to dismiss on Section 101 grounds too early. The Federal Circuit said in both cases that patents can't be invalidated under Alice on early motions if there are factual disputes about whether they contain an inventive concept that makes them patent eligible. Both rulings are now frequently cited to argue against Alice challenges, and they appear to have significantly boosted the odds that patents will survive.
"We've really been keeping an eye on how district courts would react to the Berkheimer and Aatrix decisions," said Mr. Fuga. "We've seen the result has actually been significant." When patent owners can show that the patent is arguably directed to an inventive technology or a way to improve the operation of a computer, they've been able to use Berkheimer and Aatrix to defeat early Alice motions. Yet the rulings have by no means been the death knell for such motions, as some had speculated. Whether a patent survives will depend on if there is a factual dispute over whether the claims and the written description include something more than an abstract idea, and "unfortunately, some of the patents are just really bad and there are no factual issues," Mr. Fuga said.