Nearly all eligibility rejections challenged in post-Alice appeals in computer related technologies are affirmed in whole by the Patent Trial and Appeal Board (PTAB). Most of those appeals originate from business-method art units, where almost a quarter of the appeals involve only eligibility rejections. The Patent Trial and Appeal Board has a substantial burden disposing of appeals from business-method art units resulting from a high volume of appeal filings and eligibility based appeals. Thus, though many applicants appear to believe that changing the decision-maker (from the examiner to the PTAB) may ease the stringency of applying the Alice eligibility standards, the data suggests that this is generally not an effective strategy.

Kilpatrick Townsend’s Kate Gaudry and Sam Hayim offer these takeaways from a recent presentation:

Nearly all post-Alice eligibility rejections are affirmed in whole by the PTAB

• 83% of eligibility rejections in computer related areas are affirmed.
• For appeals filed in the last year, 93% of eligibility rejections are affirmed.

The volume of appeals with eligibility rejections vary across Technology Centers (TCs)

• 85% of post-Alice business-method appeals dealt with eligibility rejections. By contrast, roughly 8% of appeals from other computer related TCs dealt with eligibility rejections.
• The portion of business-method appeals involving eligibility rejections is increasing.

Eligibility rejections are creating a substantial processing burden at the PTAB

• There are more appeals from business-methods than any other TC.
• The PTAB disposes of more business-methods appeals than appeals from other TCs. Yet, there are almost four times as many pending business-method appeals than appeals from other computer related TCs.