Rowan Analytics Insights
Patent Prosecution Analytics Benchmarking Report – November 2023

Examining 103 Rejections in Office Actions by Technology Center

In our last two newsletters, we investigated 101 and 102 rejections and their frequency by Technology Center. This month we continue on that path and move to 103 rejections.

Section 103 of the Patent Act deals with the differences between the subject matter sought to be patented and the prior art. This rejection may be received when the examiner considers the invention to be obvious, as the standard holds that a patentable invention must be a “non-obvious” improvement over prior art.

As with the 101 and 102 analysis, 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 under 35 U.S.C. 103, and received a final disposition either through abandonment or allowance, we then further divided them by Technology Center and status.

The below graph shows the percentage of Office actions that included a 103 rejection against the total sample.

Among the abandoned assets, most of the Technology Centers have a high rate of 103 rejections, ranging from 73% to 93%, with the exception of Technology Center 1600 – Biotechnology and Organic – with a rejection rate of 48%. With the exception of Biotechnology and Organic, these are the highest percentages we’ve seen in this recent analysis of 101/102/103 rejections. 103 rejections can be harder to argue around or amend than a single 102 disclosure, so this may account for the higher percentages.

On the other hand, and not necessarily surprisingly, when we look at the assets that were ultimately allowed, we see much lower rejection rates, although again Biotechnology and Organic is an outlier, with a rejection rate of 56%. The other Technology Centers received much lower rejection rates, ranging from 10% to 25%.

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