PTAB: Increasingly difficult to overturn abstract idea rejections on appeal

The latest data from Anticipat show that the effects of #AliceStorm are beginning to stabilize at the PTAB. At a webinar over the summer, we presented data on the reversal rates of abstract idea rejections. Month-to-month, we presented on a highly volatile, but overall low reversal rate for abstract ideas of about 17%. Now with several more months of data, the reversal rate appears to have stabilized around a lower overall reversal rate of 16%. See chart below.

monthly

To lower the overall reversal rate down to 16%, the past few months have seen low reversal rates: September at 15%; October at 11%; November at 14%; and December at 11%. This highlights a trend of eight months in which no monthly reversal rate has exceeded 20%.  See also below table.

Month Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 Jan-17 Feb-17 Mar-17 Apr-17 May-17 Jun-17 Jul-17 Aug-17 Sep-17 Oct-17 Nov-17 Dec-17
Reversal Rate 33% 27% 33% 29% 14% 28% 39% 20% 3% 11% 14% 15% 8% 15% 11% 14% 11%
Reversed 2 3 2 7 3 17 15 16 1 7 13 16 7 10 9 8 2
Total 6 11 6 24 22 60 38 81 31 63 94 108 93 68 83 56 19

The overall reversal rate means that for every appellant appealing an abstract idea rejection through to a final decision, less than one in six will be successful. While the data show this is a difficult rejection to overcome on appeal compared to other rejections, it also shows that appealing such rejections is not a completely futile endeavor.

As abstract idea rejections have grown in popularity among the Examining corps post-Alice, a low reversal rate may embolden Examiners to reject on abstract idea grounds. Technology that had previously rarely encountered abstract idea rejections is now seeing such rejections, making no art unit immune. Plus, computer technology infiltrating every technological sector makes abstract idea rejections even more likely to continue.

But each SPE of each art unit and each director of each tech center approaches Section 101 differently. Anticipat Research provides an ability to search for appeals-data for your particular art unit of interest to see the rates and the recent reversals. As will be seen in a forthcoming post on tech center rates, there are calms within the storm.

 

2 responses

  1. Pingback: The end of #swpats in the #us is getting ever more real and it’s ha… | Dr. Roy Schestowitz (罗伊)

  2. Pingback: Abstract idea rejections in biotech/pharma are overturned far more than other technologies on appeal at PTAB | Anticipat Blog

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