Rowan Analytics Insights
Patent Prosecution Analytics Benchmarking Report – August 2023

Examining 101 Rejections in Office Actions by Technology Center

For more than two years, Rowan has been examining a variety of statistics related to patent preparation and prosecution. Many of our newsletters have focused on Office actions that have received a rejection based on a 112 issue. This month we thought it would be interesting to delve into another type of rejection, this time those based on a 101 issue.

As we probably all know, Section 101 of the Patent Act states that patents may be granted on “any new and useful process, machine, manufacture, or composition of matter.” This is sometimes referred to as the “subject matter eligibility”. Laws of nature, abstract ideas and natural phenomena are some of the examples of exceptions to statutory subject matter, and therefore applications that are determined to cover these subjects have the potential to receive a 101 rejection.

To study this, we looked at approximately 15,000 patent applications filed mostly in 2019 and 2020 and analyzed the various rejections cited in Office actions that these applications received. For those applications that received an Office action including a rejection based on a 101 issue, we then further divided them by Technology Center, and also by status: abandoned, in active prosecution, and allowed/issued.

The below graph shows the percentage of office actions including a 101 rejection against the total sample.

The percentages vary greatly across the Technology Centers. 1700, Chemicals and Materials Engineering, has by far the lowest percentage across all three statuses and this is likely driven by the nature of the subject matter.

On the other end of the spectrum, Technology Center 3600, Transportation, Electronic Commerce, Construction, Agriculture, Licensing and Review, and Technology Center 2100, Computer Architecture Software and Information Security have the highest percentages of 101 rejections in their Office actions. 3600 is likely to have the most business method related inventions, so it is not surprising that they run into the most subject matter eligibility rejections. Technology Center 2100 encompasses software applications, so again a logical place for challenges to the eligibility of the application.

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