In my own prosecution practice I’ve noted a recent uptick in the allowance rate of many examiners in the 36XX art units, with several examiners that had hitherto never allowed a single case allowing multiple cases during calendar year 2017. This piqued my interest, and I decided to conduct a more robust statistical evaluation to see whether my personal experience would bear out more generally.
Signs of Recovery
My evaluation computed the aggregate allowance-to-abandonment ratio in each of the 36XX art units in calendar years 2013 through 2017. As expected, the allowance-to-abandonment ratio plunged precipitously in calendar year 2015—the first year that the effects of Alice truly began to be felt—and continued to decline in 2016. However, the ratio begins to increase again in 2017, with a year-over-year ratio change of 1.62 (a 62% increase) across all the 36XX art units, following a ratio change of 0.9 (a modest decline) the year before. Perhaps more tellingly, the art units entitled “Data Processing: Financial, Business Practice, Management, or Cost/Price Determination”—traditionally the hardest-hit by Alice —experienced a mean ratio change of 2.68 (a significant increase) from 2016 to 2017, after a ratio change of 0.67 (a moderate decline) the prior year. The hard-hit 2680s and 2690s experienced even greater recoveries.
A Sea Change Coming?
Although even with the increases in 2017 the allowance-to-abandonment ratios are still far below their pre-Alice levels, the statistics suggest that a sea change may have begun, with the PTO starting to loosen somewhat in the wake of a series of pro-eligibility cases such as Enfish, BASCOM, McRO, Thales, Trading Technologies and Visual Memory. More recent pro-eligibility cases such as Finjan, Core Wireless, Berkheimer and Aatrix will presumably further bolster this trend.
Following are charts of aggregate allowance-to-abandonment ratios from 2013 to 2017 for the art units in the 3680, 3690 and “Financial” (3622, 3623, 3625, 2626, 2627, 3628, 2629, 3685, 3689 and 3693) groups.
Originally published March 5, 2018 on Fenwick's Bilski Blog.