Their statistics are distorted – a small increase from zero is a huge percentage

When considering judicial outcomes, despite the relatively small number of Alice decisions, the substantial increase of § 101 attacks in court since 2014 has been fodder to paint an alarming picture. For example, critics of Alice often highlight the percentage increase in the number of invalidated patents under § 101 pre- and post-Alice: "Compared with the five years prior to Alice, there has been a 1056% increase in the number of decisions finding ineligible claims, and a 914% increase in the number of invalidated patents."224 Such statistics seem to suggest that Alice has entirely overrun patent litigation. Yet, relying on such percent increases presents a distorted view of the world because § 101 decisions in the decade prior to Alice were almost nonexistent. As others have written, the Supreme Court's 1980s decisions on patent eligibility along with the Federal Circuit's jurisprudence through the early 2000s "render[ed] the patentable subject matter [*38] requirement effectively a dead letter."225 The post-Alice percent increase reflects a comparison to the pinnacle of free-flowing patent eligibility that created the immense problem that necessitated an unprecedented four Supreme Court patent eligibility decisions in a matter of four years.226 Thus, the State Street "glory days" of patent eligibility are far from the normal state and should not serve as the appropriate benchmark for judging the "pre-Alice" world with its very few examples of ineligibility. Moreover, the number of pre-State Street eligibility challenges may also be a misleading metric to measure against post-Alice eligibility challenges because it predates the Internet boom and so much of the technology that serves as the target of Alice attacks. Rather than looking to how § 101 challenges have increased from a very different legal regime and state of technology, the better approach is to consider the current impact of Alice in the context of current patenting trends and other grounds for patentability.