Uncertainty generates a flood of bad-faith litigation

The current unreliability of patent-eligibility law, documented thus far here, here and here, has also created undue burdens on litigants and the courts. In this final installment, we detail how the current unreliability burdens litigants and the courts and how it is a fundamental threat to U.S. competitiveness and national security.

Patent infringers now routinely raise Section 101 as a defense, often merely as a strategy to complicate and prolong the litigation, rather than as a good-faith defense with a likelihood of success. For example, one analysis found that, from 2012 to 2014 (when Alice was decided), Section 101 was raised in just two Rule 12(b)(6) motions across the country each year. In the year after Alice, that number rose to 36 motions, and by 2019, accused infringers were filing over 100 such motions each year.

Moreover, while the success rate of these motions skyrocketed in the first years after Alice—illustrating Alice’s impact on granted patent rights—by 2019, the percentage of such motions granted was only 38%. Thus, almost two-thirds of all such 12(b)(6) motions accomplished little more than imposing time and expense on patent owners trying to vindicate their patent rights.

Another analysis similarly found that, in the 30 months prior to Alice, district courts had entertained 20 Section 101 motions to dismiss. Between June 19, 2014, and July 31, 2018, that number totaled 365 decisions on these types of motions—representing a 1,725% increase.

As another indication of the burdens that post-Mayo/Alice Section 101 is imposing on litigants and courts, the District of Delaware—one of the busiest patent dockets in the country—has established dedicated “Section 101 days” to deal with a docket that has “become flooded with legal briefs arguing that a patent covers ineligible material.”