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February 13, 2016
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kate-table-2We separated data from tech Center (TC) 1600 to identify assessment trends over the biotechnology and organic biochemistry art devices. TC-1600 information were segregated into art product teams as shown in Table 2. Table 2 further identifies the specific art product teams plus the technologies associated with each. Information as explained below were then produced.

Patent-Eligibility Rejections: Substantially more Prevalent in Choose Art Product Teams

For each workplace action released during one of the six defined schedules, we identified, with a customized question performed by LexisNexis Patent AdvisorSM, whether the workplace activity included a rejection under § 101. We assumed that a lot of, if not all, for the 101 rejections included assertions that one or higher statements lacked patentable subject material.

Figure 1 shows how the prevalence of 101 rejection varies across art unit teams and cycles. The 101 prevalence was rather continual across cycles in natural compounds and organic biochemistry art device teams 1610 and 1620. More, no constant trend was observed in the plant art group 1660. At the same time, the art device teams centering on molecular biology, immunology and protein biochemistry technologies (art device groups 1630, 1640, 1650 and 1670) revealed constant increases in 101 prevalence.kate-figure-1 Across all of these art products, the portion of office activities with a 101 getting rejected tripled through the January 2012 Pre-Mayo period of time towards the more recent February 2015 After Interim Guidelines time frame. Particularly, the probability of obtaining a rejection under § 101 rose from 11.6% in January 2012 to 32.5% in February 2015. The sharpest increase occurred after the Myriad tips (since the likelihood jumped from 16.3% in August 2013 to 26.1% in May 2014), and, although the Interim recommendations had been typically considered more modest than the Myriad tips, the event of rejections under § 101 had been higher following the Interim recommendations (32.5per cent) than after the Myriad directions (26.1percent).


Additionally, art product team 1630 revealed a far more considerable impact following the Myriad decision than performed art device teams 1640, 1650, or 1670. These differences may mirror the fact that the Myriad choice ended up being a narrow ruling regarding genomic DNA, whereas the array recommendations reached beyond DNA and included natural proteins. Art unit group 1630, which evaluates claims to isolated DNA would have been straight away affected by Myriad, whereas art devices 1640, 1650, and 1670, which evaluate more statements directed to naturally occurring proteins, delayed their reaction to Myriad until instructed to do so by the recommendations.

kate-figure-3Results on Prosecution Outcomes

A Few strategies occur for answering a rejection under § 101. An applicant may be able to amend a number of claims or even to argue from the rejection (into examiner or to the attraction board) in order to get over the rejection. As an alternative, an applicant may think that it will likely be impractical to get over the getting rejected or that the prosecution prices or risks exceed the patent incentive. In these instances, an applicant may choose to abandon prosecution of a patent application.

To research the way the rejections under § 101 impact prosecution, we identified the portion of actions which were notices of allowances (unlike office activities). Figure 2 shows these percentages for every of your defined schedules by TC 1600 art device team. Interestingly, we do not observe strong styles in allowance rates over the defined cycles. Art device groups 1610 and 1620, two of the groups showing small improvement in the prevalence of rejections under § 101, show a somewhat regular rise in allowance rates, whereas art unit teams 1630, 1640, and 1650 showed allowance-probability variability but no upward styles in allowance rates.[1]


However, acquiring a patent does seem to require additional energy in current cycles. Figure 3 shows the common few office activities issued prior to issuance of notices of allowance in an indicated time frame. Across the 1630, 1640 1650 and 1670 biotechnology art units, the average office-action count rose 25% from 2.0 within the January 2012 Pre-Mayo time frame to 2.5 inside February 2015 After Interim instructions time period. Art unit group 1630, which evaluates claims related to molecular biology and DNA, on top of other things, reveals the highest range company activities before allowance than just about any various other art device group shown.

PTAB Indications of Applicant Care

You can posit: could be the striking increased prevalence of 101 rejections in biotechnology area justified because of this brand new situation legislation or does it portray an overreaction by examiners? In the event that latter, it's possible to expect that an ever-increasing quantity of individuals would challenge 101 rejections by attractive these rejections hence the Patent Trial and Appeal Board (PTAB) would usually reverse the rejections.

We for that reason performed online searches within the PTAB ex parte charm database for decisions between January of 2012 to July of 2015 in TC 1600 that involved a charm about a rejection of claims in relation to a purported insufficient statutory material under 35 U.S.C. § 101. Interestingly, we discovered that not many TC 1600 PTAB decisions involved a challenged or recently raised 101 getting rejected. Especially, because of this decision time period, we identified only one decision concerning patent-eligibility issues, which was in the context of an interference proceeding.

To advance explore whether candidates were pretty much expected to allure given the numerous rulings and instructions, we used LexisNexis Patent AdvisorSM to recognize the sheer number of charm briefs filed in TC 1600 and other tech Centers since January 1, 2012.

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