Can Artificial Intelligence Patents Survive Alice?

35 U.S.C. §101 covers patent eligibility requirements and while the statute and related caselaw have existed for decades, the provision has had greater impact on patent cases since the Supreme Court's 2014 Alice decision, which created a two-step test for evaluating patent eligibility. First, courts must determine if "the claims at issue are directed to a patent-ineligible concept," such as an abstract idea. Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208 (2014). Second, if the claims are directed to a patent-ineligible concept, courts must "search for an 'inventive concept' — i.e., an element or combination of elements that is sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the ineligible concept itself." Id. at 217-218 (cleaned up).

Since Alice, there has been a dramatic increase in the number of §101 decisions and motions. A search on Docket Navigator shows that in 2013, U.S. district courts held 20 patents ineligible under §101. In 2015, that number rose to 171. The increase is especially targeted at computer software and hardware patents. For example, 137 of the 171 ineligibility determinations in 2015 were related to such patents. The surge has continued with an average of 217 invalidity determinations per year between 2015 and 2022, compared with an annual average of 19 between 2008 and 2014.