Adjusting to Alice–Report by USPTO (April 2020)

The U.S. Patent and Trademark Office has issued a report entitled “Adjusting to Alice” which refers to the Supreme Court decision in Alice Corp v CLS Bank International.

The report notes that the likelihood of receiving a first office action with a rejection for patent-ineligible subject matter increased by 31% in the 18 months following the U.S. Supreme Court decision in Alice Corp. v. CLS Bank International in 33 “Alice-affected” technology areas.

For these technologies, uncertainty in patent examination — measured as variability in patent subject matter eligibility determinations across examiners in the first action stage of examination — increased by 26% in the 18 months following the Alice decision.

The United States Patent and Trademark Office issued its January 2019 Revised Patent Subject Matter Eligibility Guidance in January 2019.  One year since that Guidance was issued, the likelihood of Alice-affected technologies receiving a first office action with a rejection for patent-ineligible subject matter has decreased slightly.

Alice has certainly caused major disruptions, along with all Supreme Court decisions dealing with patents.  It remains much more difficult and expensive to obtain patents on novel and important software than it used to be.  More difficult, but not impossible.

The report can be found here:

https://www.uspto.gov/sites/default/files/documents/OCE-DH_AdjustingtoAlice.pdf