Prefer our evidence – it’s based on overwhelming data – aff evidence is outdated or not qualified

As I noted in my testimony, the USPTO has published a study examining the application of section 101 that considered both patent-eligibility rejection rates and the variability of examiners’ eligibility determinations.3 This study found by 2020, both rejection rates and examiner variability were lower than they were before the Alice case was decided.4 I also cited an academic study that examined all 368 patent eligibility decisions that were made by the Federal Circuit between 2012 and 2022.5 The authors found that patent eligibility decisions by district courts and the Patent Trial and Appeal Board are affirmed at the high rate of 87%, indicating that eligibility determinations are (at least according to the Federal Circuit) overwhelmingly correct. Perhaps more importantly, the study also found that there was relatively little evidence of disagreement among Federal Circuit judges regarding how to apply the Supreme Court’s patent-eligibility jurisprudence. As the authors noted in a summary of their study, “under one of the most well-established metrics for measuring the predictability in the law, § 101 proved to be more predictable than other areas of patent law over the past decade.”6 In my oral testimony, I further noted that the USPTO’s own internal quality metrics indicate that Section 101 is the most accurately applied by examiners of the major statutory requirements.7 I also cited a number of additional studies that indicated, e.g., that Alice resulted in increased R&D investment8 and that there was “a positive association between Alice and both R&D spending by software firms and patenting by firms that held relatively more software patents prior to the Court’s opinion.”9 Finally, in previous testimony, I cited additional data and studies.10

In contrast, Director Kappos’s testimony cited a trade press article, a student note, and an academic article reporting the results of an opinion survey conducted in 2017.11 Notably, Director Kappos and others continue to cite this opinion survey prominently, despite the fact that venture capital investment data are now available for the seven years since the survey was conducted. Presumably, the proponents of PERA would cite the actual data rather than an outdated opinion survey if those data supported their contentions.