New timeline for sending Anticipat Recap emails: 14 days

Anticipat Recap is slightly changing its delivery timeframe. In an effort to balance delivering the freshest but most complete set of decisions, in the past Anticipat has delivered a recap of decisions after 8 days of a particular date’s decisions. However,certain times in the year the USPTO has delays in posting the decisions, which sneak in after the eight day window. The eight-day approach thus insufficiently captures all the decisions so we are changing the timeframe to 14 days.

Anticipat currently gets the bulk of its appeals decisions from a USPTO-powered efoia webpage. This webpage on an almost daily basis posts ex parte PTAB decisions after some document processing (including OCR’ing the PDFs and assigning limited metadata to the decisions). For the most part, it takes the USPTO several days to post these decisions after such processing.

Recently, we have concluded that sometimes, this 8-day window of time doesn’t cut it. Some of the slowest times of the year for the USPTO to post these decisions to the efoia page are at the end of fiscal quarters. The end of December is always especially slow. The last days of this past month, March, was also much slower than usual: only a fraction of decisions were available at the 8 day mark compared with the total number of decisions subsequently posted after the eighth day.

For those users who would prefer a shorter timeframe for delivering these Recap emails, feel free to take advantage of the Research page. The Research page is updated every day at 3PM EST and allows users to check for specific issues or the most recent decisions at any time. In fact, the Research page will have the exact same decisions that the USPTO’s webpage has within 24 hours. And this even includes our unique ground of rejection and outcome annotation.

As fresh as the Research page is, it doesn’t neatly organize the various issues and outcomes like the Recap email does. See below.

recap

Even though we’ve opted to prioritize (for the time being) slightly less freshness for completeness in these daily emails, we are working on a way that we can have both. We are currently developing our infrastructure to ingest these decisions that is not dependent on the e-foia webpage and that is much speedier. And we are also developing settings for users who want weekly recap emails instead of the daily emails.

Stay tuned for future developments. And if you have any feedback, please reach out to us.

The State of Appealing Abstract Idea Rejections of Business Method Applications post-Alice

As seen from Anticipat’s daily recap emails, last month the PTAB reversed a slew of abstract idea rejections. As already discussed in our blog post, several of these reversals related to business method applications. Using Anticipat’s Research database to look even beyond last month, we see interesting results relating to trends of business method appeals outcomes.

The term “business method” has been broadly defined as “a method of operating any aspect of an economic enterprise”. Tech center 3600 includes broad categories of business methods. For example, three sets of art unit groups are listed below.

Here is a visual representation of the reversals over the course of almost the past two years. These are appeals that make it all the way to a final decision on tech center 3600 (Data from Anticipat Research.)

abstractidea3

The first interesting point is that last month’s 10 abstract idea reversals at first blush seems high. Only two other months in the last couple years have had higher numbers of reversals for business method rejections. From such numbers, one might think that the PTAB might be engaging in business method friendly behavior. But looking at the denominator of how many total abstract idea decisions of business method applications, a different picture is painted. It took 125 decisions to get these 10 reversals, a reversal rate of 8%. This is hardly business method friendly.

The second interesting point is that the number of appeals of abstract idea rejections for business methods is going up even as appeal production is going down. As pointed out by Ryan Alley, the PTAB’s opinion output for ex parte appeals is down from 2017. More concretely, in March of 2017, the PTAB decided a total of about 1650 decisions. In contrast, in March of 2018, the PTAB decided a total of about 930 decisions. Even with monthly variability of output (December 2017 and January 2018 had much lower output), it is telling that with such a dramatic drop for the same month, the number of abstract idea rejections decided increased substantially from 43 to 125. This goes to show that the trend is to appeal business method abstract idea rejections. This is especially apparent when looking at the total number of abstract idea decisions for business methods in months of 2016.

The reversal rate for these business method applications seems to be stabilizing at a low rate, as shown in the following graph. (Data from Anticipat Research.)

reversalratesabstract

For the past year, these abstract idea rejections for business method applications have been consistently reversed at about 10%. This is a very low reversal rate compared with all grounds of rejection. But as applicants choose to appeal rejections of their business method applications, even if the reversal rate stays low, it still means that a large number of such rejections will get reversed. That is, a 10% reversal rate of 120 applications still yields 12 reversals even if it took a lot of applications to get there.

In conclusion, Examiners will likely continue to reject business method applications as patent-ineligible abstract ideas and as applicants opt to pursue an appeal, the Board seems to be overturning the Examiner relatively infrequently. This may change, as case law continues to develop and as a new director of the USPTO Andrei Iancu has promised a new path which could include better application of Section 101. Use Anticipat Research to analyze trends of business methods or of other technology centers. Sign up for a free trial here.

 

The PTAB backlog for ex parte appeals continues its plunge

Perhaps one of the most interesting speakers at the PTAB Bar Association annual conference on March 22, 2018 was Chief Judge Ruschke. Ruschke highlighted several statistics at the Board including the ever-diminishing backlog for ex parte appeals. Noticeably proud of this effort, which we report on below, Ruschke deserves credit for being at the helm of the PTAB during this time of a historic drop in appeals backlog.

Several months back, we reported on the dip in ex parte appeals backlog comparing fiscal year 2016 with fiscal year 2017. Since then, the USPTO recently released a chart, of which Chief Judge Ruschke spoke, that tracks a moving monthly average for February 2018 with February 2017. Here is the new chart available here at the USPTO.

pendency2

Any way you slice it, this chart with updated data shows that the PTAB appeals backlog continues its plunge. For biotech/chemical art, this decrease is pronounced. For example, for tech center 1600, which previously dipped all the way to 19.2 months as we reported previously, the backlog is now down to 18.3 months. For tech center 1700, which we reported as previously dipping to 16.9 months, is now down to an impressive 13.1 months.

For computer/electrical art, the backlog shows modest, but consistent declines. Tech center 2100 had previously dipped to 13.2 months. Now, it has decreased to 13 months. Tech center 2400, which had previously dipped its backlog to 12.7, now has a backlog of 12.5 months. Tech center 2600, previously at 13 months, now has the backlog lowered to 12.8. Finally, tech center 2800, which dipped to 16.9 months is now at 14.4 months.

The tech center with the most number of forwarded appeals is 3600, home of many business method applications. This tech center had previously decreased to 22.4 months. Now this backlog is all the way down to 19.3 months.

Finally, tech center 3700, home to mechanical and biomedical art, had previously decreased its backlog to 23 months. Now, the tech center’s backlog has decreased even further to 15.2 months.

The appeal backlog is calculated as the amount of time from when the appeal is forwarded to the Board (shortly after an Examiner’s Answer is issued) until a final decision is made. As this backlog increasingly shortens, the decision to pursue an appeal becomes more attractive. This, in combination with recent increases in USPTO fees that disproportionately makes more expensive pursuing continuing prosecution with RCEs. This also, knowing that some grounds of rejection statistically get overturned at higher levels than you might think. You can see for yourself how your specific grounds of rejection are handled at the Board to guide your particular prosecution strategy.

From all accounts, Chief Judge Ruschke does not intend to discontinue the work at cutting the backlog for ex parte appeals. We at Anticipat.com will continue to track this as well as other PTAB appeals statistics. Stay tuned for developments such as backlog that can affect the decision to pursue an ex parte appeal.

 

 

PTAB Chief Judge Ruschke at PTAB Bar Association meeting: ex parte PTAB can develop Section 101 jurisprudence

The PTAB Bar Association has a committee called “PTAB Appeals” that scheduled a meeting on April 5, 2018 to discuss various topics with sitting judges at the PTAB. This meeting was set up in part because of interest in Chief Judge Ruschke to meet with practitioners to discuss ex parte appeals. Ex parte appeals is the less-discussed and less-focused on aspect of what PTAB does. The two-hour meeting was at the USPTO in Alexandria, VA and covered a lot of ground including Section 101.

At this meeting, Chief Judge Ruschke was optimistic about newly appointed director Andrew Iancu. According to Ruschke, Iancu has stressed that the USPTO has to do a better job of applying Section 101 in a more consistent, straightforward manner. And Iancu sees the corpus of decisions coming out of the PTAB as an important clue to this.

During the meeting, there was talk about how Examiners at the USPTO largely are not good at applying case law. And part of the challenge of overcoming Section 101 rejections is having the Examiners understand the legal arguments. But the Board comprises judges who are legally trained to entertain and apply case law. And as the judges are overturning Examiners’ 101 rejections, this becomes an additional way for Section 101 jurisprudence to develop (in addition to the federal court decisions). Because there are so many more decisions at the PTAB across more diverse technology centers, the PTAB seems to be an ideal forum for understanding the boundaries of patent-eligibility.

Anticipat.com is committed to tracking all the facets of decisions coming out of the ex parte PTAB. Stay tuned for continued developments as it relates to Section 101 among other areas.