35U.S.C.§101: POST-ALICE LANDSCAPE

No case in recent history has had as profound an impact on U.S. patent litigation as the Supreme Court‘s June 19, 2014 decision in Alice Corp. Pty. Ltd. v. CLS Bank Intern., 134 S. Ct. 2347 (2014). The Alice decision clarified the law on subject matter eligibility under 35 U.S.C. § 101. The case 'clarified' (instead of changed) this law because the Supreme Court simply adopted its two-part test from its 2012 Mayo decision. See Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289, 1293-1294 (2012). Notwithstanding that the Supreme Court did not really create new law with its Alice decision, since that decision, both the Court of Appeals for the Federal Circuit and U.S. district courts have routinely invalidated patents under 35 U.S.C. § 101 and Alice. As shown below, with only one exception, whenever the Federal Circuit has addressed 35 U.S.C. § 101 since Alice, the Federal Circuit has invalidated the patent or patents at issue. And according to one study, the district courts are granting Alice motions (i.e., invalidating the patents) over 70% of the time since the Alice decision.