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Is the Subject Matter Pendulum Again Swinging Away From Patentability?

The chart above shows the yearly change in allowance rate for each art from 2014-2018 (calendar years, not fiscal years).

Alice was absolutely brutal on art units 3620, 3680, and 3690

Art units 3620, 3680, and 3690 are the “business method” art units that see far and away more Alice rejections than other art units. Not surprisingly then, those art units experienced massive drops in allowance rate from 2014 to 2015 (the Alice Supreme Court opinion came down in June of 2014). Art unit 3690, for example, went from an allowance rate of 53% in 2014 to 11% in 2015! (after having already dropped from 64% in 2013).

After a strong rebound in 2017, allowance rates are again slipping for 3620 and 3680

One thing that surprised me in the above chart is that the rebound in subject matter patentability that came with cases such as Enfish, MCRO, and Amdocs seems to have already peaked in 2017. So far in 2018, 3620 and 3680 have again seen drops in allowance rate. It will be interesting to see where they end the year.

Tings just keep getting worse for TC 2100

The past four years have generally been rough on TC 2100 (covering computer architecture software and information security) and TC 2400 (computer networks, multiplex, cable and cryptography/security). The cumulative drop in allowance rate for 2120 (computer architecture), for example, is just as bad as the cumulative drop in allowance rate for 3620. This one doesn’t seem attributable to Alice, however, and may just reflect the maturity of the computer hardware industry…?

What’s Up With Art Units 1750 and 1790?

Two other art units that jump out from the chart are 1750 (electrochemistry, solar cells, thermoelectrics) and 1790 (Food, Analytical Chemistry, Sterilization, Biochemistry, Electrochemistry); the former having a massive drop this year, and the latter an outsized gain in 2015. Upon further investigation the former seems to be the result of art unit realignment. It seems pending applications were reassigned out of the now defunct 1750 but abandonments were left in it. I am going to guess something similar was the cause of the big 2014 spike for art unit 1790, but if anyone can point to some case or other event in 2014 or 2105 that drastically improved the allowance rate for 1790, I would love to hear about it.

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