Rowan Analytics Insights
Patent Prosecution Analytics Benchmarking Report – June 2022
Examination of Rejection Types in CBM Petitions
In May, Rowan began a series of newsletters looking at Covered Business Method (CBM) petitions. We started with an examination of 112 arguments in these petitions, and whether any claims were ultimately canceled due to a 112 error.
This month, we expand our look to other arguments – comparing 101, 102 and 103 in addition to 112.
We expected to, and did see 101 as the most frequent argument type, as a CBM petition was the only post-grant review option that allowed for 101 invalidity arguments other than Post Grant Reviews.
As with the previous month, we analyzed 385 total petitions. Of those, 166 reached a final decision, so we started there. We looked for each argument and found that while smaller in absolute numbers, 112 arguments were still a significant factor.
We looked at those petitions that were instituted. These fall into four categories of results – dismissed after institution, final decision, settlement after institution and termination. We examined each category to look at the various argument types that were utilized in each petition.
The breakdown of each argument type still tracks the overall findings that 112 is frequently raised, consisting of 10% of the arguments, and as prevalent as 102 arguments.
We also looked at the argument types in those petitions where the institution was denied. We see that although these failed to reach final decisions, 112 was still a significant argument among petitioners looking to challenge patents using Covered Business Method petitions.
In summary, 112 arguments appear in about 20% of the petitions we studied, and we expect this trend to continue with Post Grant Reviews going forward. Given that many 112 errors can be prevented with patent drafting software, should patent drafters be exploring more options to prevent them?
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Sources: USPTO, Rowan analysis
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