Most invalidations come from the inter partes review in the PTAB

At the outset, it cannot be ignored that § 101 comprises a substantial portion of invalidations at the district court. Professor Stephen Yelderman's recent study found that § 101 was responsible for 509 invalidation "events" (any time at least part of a patent was invalidated) or 33% of all such events in federal district courts between January 1, 2011 and June 30, 2017.227 By comparison, §§ 102 and 103 combined for 491 events or 31.8%.228 Even more so, § 101 invalidation events increased significantly after Alice, rising from less than 60 in 2014 to more than 160 in 2015.229 In contrast, §§ 102 and 103 began to steadily decrease after 2014.230 Using more recent data reveals similar results regarding § 101 invalidation events. From June 2014 through December 2022, there were 506 § 101 judgment events, comprising 39.4% of all invalidity judgment events, whereas §§ 102 and 103 comprised only 24.2%.231 As shown in Graph 1, similar trends are observed for at least partial motion success (not including trial results) on invalidity grounds for §§ 101, 102, and 103 between 2011 and 2022. From 2014 to December 2022, there were a total of 1,458 patent eligibility motions in the federal district courts.232 Of those, only 581 were granted and another 167 were partially granted.233 Thus, since its issuance, § 101 has accounted on average for 83.1 successful motions per year that were at least partially granted. The number of § 101 challenges that were litigated to an appellate decision is also quite small: about 360.234 Nevertheless, Graph 1 confirms that § 101 is indeed a powerful tool frequently used (comparatively speaking) to invalidate patents in federal district court.

Importantly, however, as Professor Yelderman acknowledged in his study, those statistics do not provide the complete picture of how frequently parties utilize different statutory grounds to invalidate patents because they do not include invalidity challenges through inter partes review (IPR) under §§ 102 and 103 before the Patent Trial and Appeal Board (PTAB), which began in September 2012.235 With IPR, which became immensely popular after its implementation, challengers may attack patents only under §§ 102 and 103 not § 101.236 So, while there were a total of 491 invalidation events in district courts under §§ 102 and 103 in federal district court from January 1, 2011 to June 30, 2017, there were 1,353 patents that were found at least partially invalid under §§ 102 or 103 through IPR from its start in September 2012 to June 2017.237 Between April 2015 and September 2016 alone, IPRs invalided all instituted claims in 608 patents and some claims in 125 additional patents.238 In other words, IPRs invalidated almost as many patents in 16 months as Mayo/Alice invalidated in the last decade. By comparison, only a small number of patents (approximately 100) were invalidated under § 101 at the PTAB as part of covered business method (CBM) review.239 However, as of September 2020, CBM is no longer available, so it carries no future impact.240

As such, when considering the number of Alice-invalided patents in comparison to other invalidity grounds, the overall impact is much more modest than the percent increase from pre- to post-Alice or district court utilization might initially suggest. Looking more closely at the complete picture of patent invalidations, § 101 invalidations in the past decade constitute a relatively small fraction of invalidations in comparison to the number of IPR invalidity decisions241 and the more than 300,000 patents granted each year.242 It is also important to note that many patents invalidated under Alice likely issued pre-Alice without the benefit of knowing the current eligibility standard, since patent validity is evaluated under the law as it exists when challenged not when the patent issued.