(Chart: Courtesy RPX)

While Congress and the Federal Circuit debate reforming patent eligibility law, RPX Corp. has crunched some numbers that show Section 101 doesn't have nearly the bite in court that it used to.

The defensive patent aggregator's data shows that since the U.S. Court of Appeals for the Federal Circuit issued two decisions in 2018 that tweaked the law of patent eligibility, so-called Alice motions have gone from a 68% likelihood of success to a 56% percent likelihood of failure.

“It's not a small change,” said Brian Howard, RPX's vice president for analytics. “It's the first inflection point we've seen in Section 101” since the Supreme Court's Alice decision five years ago.

Alice v. CLS Bank was the culmination of four Supreme Court decisions that expanded the Supreme Court's exclusion of abstract ideas, laws of nature and natural phenomena from patent protection. Many accused patent infringers began responding to complaints with Alice motions, before discovery and claim construction began running up the legal bills.

But the Federal Circuit ruled in 2018's Berkheimer v. HP and Aatrix v. Green Shades Software that a key step in the Alice analysis—whether patent claims could have been implemented using well-understood, routine and conventional tools—often presents issues of fact that can't be resolved on the pleadings or summary judgment.

There's been much debate since about how much impact Berkheimer and Aatrix are having. RPX says the debate is over. The answer is a big impact.

Before Berkheimer, 70% of Alice motions brought at the Rule 12 stage were being granted. Afterward, that number has dropped to 45%. Pre-Berkheimer, 59% of Alice motions were being granted on summary judgment. Post-Berkheimer, that number has dropped to 40%.

Any time you have a shift in outcomes that substantial, “it really changes the settlement dynamics significantly,” Howard said.

The lower success rates also mean that patent cases are getting more expensive. Cases that aren't decided on the pleadings proceed to discovery, which in patent cases can come with a price tag in the millions.

Has the lower success rate discouraged accused infringers from trying? “I don't really see a big difference” in the number of Alice motions being filed, Howard said. “There's not a depressing effect as far as I'm aware.”

HP asked the Supreme Court last fall to review Berkheimer. The Supreme Court requested the views of the solicitor general in January. That request remains pending.

In the meantime, a handful of Senate and House judiciary committee members have proposed legislation that would rewrite Section 101 of the Patent Act while abrogating the Supreme Court's case law. Last week the Federal Circuit issued eight separate opinions asking the Supreme Court or Congress to rethink patent eligibility as it applies to the medical diagnostics industry.