The evidence is exaggerated – Alice-related rejections are even smaller because other grounds would have blocked them anyway

Moreover, the impact of patents falling to Alice is usually further overstated without taking into account which of those patents would have failed to satisfy other patentability requirements when tested under rigorous litigation. Stated differently, the number of Alice-doomed patents that otherwise would have resulted in valid inventions is an even smaller piece of the small pie noted above. Some of these patents certainly also would have been found invalid under §§ 102, 103, or 112. Thus, in measuring the impact or "harm," as some might characterize it that Alice brought to patent litigation, we should include not all patents invalidated under Alice, but instead, the patents invalidated under Alice that would not have been invalidated on other grounds. As Professor Saurabh Vishnubhakat previously explained, § 101 has been characterized as "a significant doctrinal shortcut to the other requirements for patentability."243 The impropriety of using Alice as a "shortcut" is certainly well-founded and presents concerns about the administration of patent disputes, but its use as such does not result in unjustified harm to the patent owners whose patents were nonetheless invalid on other grounds or at least, those patent holders should not be heard to complain that § 101 deprived them of patent rights that otherwise would have existed.

Undoubtedly, as highlighted here, § 101 became more frequently utilized in court proceedings after Alice and continues to play a meaningful role in patent challenges whether through judicial decisions or voluntarily resolved disputes. But it is only one ground of invalidation upon which defendants typically rely in attacking the validity of a patent. Thus, without taking into account § 101's utilization relative to other invalidity grounds (including through IPRs) and the more limited "harm" when § 101 is the sole basis for invalidity, the true impact of § 101 in patent litigation is likely to be overstated.