It has been almost six months since the release of the 2019 Subject Matter Eligibility Guidance, so I decided to check in and try to get a feel for its impact. There are myriad metrics we could look at to evaluate its impact (and I probably will look at others in future posts — subscribe!), but since Mrs. BigPatentData and I welcomed our second son into the world on Memorial Day I am a bit short on time (and sleep) this week. So for a first yardstick I decided to look at allowances in art unit 3620s and 3680s (the art units most impacted by Alice). Specifically, I was curious whether there was a flood of allowances of long-pending applications (which I measure here by number of RCEs).
Average Number of RCEs in Allowed Applications – All Art Units
For a baseline, I first looked at allowances by quarter and the average number of RCEs in those allowances, across all art units. As you can seen, the number of allowances per quarter has been pretty flat for the last 5 years or so and average number of RCEs has been consistently between around 0.5 and 0.6.
Average Number of RCEs in Allowed Applications – 3620 and 3680
Next I graphed the same numbers for applications in 3620 and 3680. Below you can see the number of allowances plummeted after Alice but had actually recovered to 2011/2012 levels even before the 2019 Subject Matter Eligibility Guidance. Then you can see the large spike in Q1 2019, which I think is safe to attribute to the 2019 Guidance.
With respect to average number of RCEs, a couple things I found interesting:
- In general, applications in 3620 and 3680 have a lot more RCEs than the PTO average
- I think the significant drop in average number of RCEs immediately after Alice suggests a bunch of long-pending applications were immediately abandoned.
- The jump in average number of RCEs in Q1 of 2019 suggests what I expected: the 2019 Guidance broke up the log jam for a bunch of long-pending applications.
To dig further into the point (3) above, I looked at how many allowed applications in 3620 and 3680 had 3 or more RCEs.
Allowed Applications with 3 or more RCEs in 3620 and 3680
Here I grouped the allowances by number of RCEs the application had. The chart only shows allowances where the application had 3 or more RCEs. As you can see, Q1 2019 has easily the most allowances of applications of this type. This further supports my hypothesis that the 2019 Guidance had a big impact in allowing long-pending applications to overcome the 101 hurdle.
Without looking at the merits of each application I think it is impossible to say whether the overall impact of the 2019 Guidance was good or bad. But what I think most can agree on is that the added expense resulting from the 101 uncertainty over the past 5 years has been a massive waste of everyone’s time and resources.