USPTO Data on Exposure to Judicial Uncertainty over Patent Eligible Subject Matter
In the most recent 15 years, one would be hard-pressed to name another area of patent law that has been more in flux than subject matter eligibility — whether the type of invention is eligible for any patent protection under Title 35, Section 101 of the U.S. Code.
Although patent law has long prohibited the protection of abstract ideas, laws of nature, or natural phenomena, the scope of these “ineligible” categories have been expanding under Supreme Court decisions over the past decade. For instance, software patents were guided by the USPTO Final Computer Related Examination Guidelines (1996), business method patents have been around since the State Street Bank case of 1998, and patent eligibility jurisprudence has developed further under the more recent 2014 U.S. Supreme Court decision in Alice v. CLS Bank.
Given the ambiguous state of the law post-Alice, the USPTO released a report to Congress that summarized public views on patent subject matter eligibility. (Link to the report here) The report includes sets of data that illuminate some trends in subject matter eligibility examination from the past few decades.
The USPTO found that nearly 50% of all issued patents to US companies were related to exposed technologies, or technologies that a court may find to be within one of the ineligible subject matter categories. According to the study, information services, education, arts and entertainment, and healthcare services were among the most exposed sectors in terms of subject matter eligibility uncertainty.
Graph of percentage of patents in exposed technologies by sector
In contrast, the USPTO data show that applications based on artificial intelligence (AI) are now being approved at nearly the same rate as non-AI based applications.
Allowance rate of AI and non-AI patent applications between 2008 and 2020
Regardless of the degree of exposure, judicial uncertainty in this area of patent law impacts all sectors of industry, and resolving the uncertainty surrounding subject matter eligibility stands as one of the key issues facing the USPTO, Federal Circuit, and Supreme Court in the coming decade.
