On July 25, 2019, Chris Loh was quoted in Law360 on how the Federal Circuit's decision last year in Berkheimer v. HP has affected patent eligibility rulings.
According to the article, the U.S. Supreme Court's 2014 Alice v. CLS Bank decision that abstract ideas implemented using a computer are not patent-eligible under Section 101 of the Patent Act prompted a wave of invalidation decisions, often very early in a case. However, in Berkheimer, the Federal Circuit held that such motions can involve factual questions that are inappropriate for early resolution.
In the year and a half since the appeals court's decision in Berkheimer, the success rate for invalidating patents under Alice early on in a case has dropped significantly.
When a judge uses Berkheimer to reject a defendant's motion seeking a quick Alice win, there is still a chance the patent could be invalidated later with a fuller record. But it appears that in some cases, losing the chance to end the case quickly prompted some defendants to throw in the towel and settle.
"Now that the bar is higher in terms of what the defendant must prove to prevail on a 101 argument, certainly that will be a factor raising settlement pressure," said Loh.