Overwhelming evidence proves uncertainty.

This empirical study finds two indicators that suggest an increase in the difficulty of overcoming initial § 101 rejections in bioinformatics, both narrowly and broadly defined. First, applicants filed fewer patent applications in bioinformatics, narrowly and broadly defined, after the Alice decision. Second, an increasing number of these patent applications were finally rejected under § 101 after the Alice decision. Within those applications directed at the narrowly defined bioinformatics sector that were finally rejected under § 101, a larger proportion of the applications had also received initial § 101 rejections.

Patent applicants in bioinformatics, narrowly and broadly defined, became pessimistic about filing more patent applications after Alice. The average number of patent applications filed in bioinformatics, narrowly defined, decreased by 74.21% per month during the nineteen months after the Alice decision (June 2014 to December 2015) compared to the same length of time before the Alice decision (January 2013 to May 2014).266 The median number of patent application filings per month was 144 before the Alice decision. This number decreased to thirty-one after the Alice decision.267 The sharpest decrease occurred in June 2014, when the Alice decision was delivered by the Supreme Court. Applications filed in June 2014 were 48.56% lower than the average patent applications in bioinformatics, narrowly defined, filed in the nineteen months before the Alice decision and continued to decrease over time. In January 2015, the first month after the PTO implemented the Alice decision, this number further decreased by 63.07% as compared to before the Alice decision. The applicants in narrowly defined bioinformatics made cautious adjustments by modifying the disclosures and claims after the Alice decision, and applicants in broadly defined bioinformatics did the same. The patent applicants in broadly defined bioinformatics also filed fewer patent applications after Alice. The number of applications filed per month on average decreased by 51.06% after the Alice decision. The median for the number of patent applications was 638 before the Alice decision, and this number decreased to 307 after Alice.

From the examiners’ perspective, Alice caused examiners to be more likely initially and finally to reject applications filed after Alice under § 101, even though applicants filed increasingly fewer patent applications for narrowly defined bioinformatics. In other words, for those decreased applications self-selected by the applicants, the Alice decision also added some expenses for these applicants. Our data also show that the decreased number of applications in narrowly defined bioinformatics were nevertheless more likely to be finally rejected by examiners under § 101. Examiners gave increasingly more final rejections to patent applications in narrowly defined bioinformatics under § 101. For patent applications that had initially received a § 101 rejection, the D-i-D model design in this study shows a causal effect of the Alice decision; specifically, applicants in narrowly defined bioinformatics were less likely to overcome their initial § 101 rejections and more likely to receive a final rejection under § 101.