Alice created two clear and predictable rules, and rejection rates have declined since before Alice

I. The current patent eligibility jurisprudence results in predictable and appropriate outcomes

The current test for patent eligibility is both clear and in line with historical and global standards for patenting: to be eligible under § 101, a patent must reflect the practical application of an advance in technology. This notion traces its origins back to the U.S. Constitution itself, in which the Framers authorized the grant of patents for the purpose of promoting the progress of the “useful arts,” which has always been understood to mean technology.1 Shortly after the Constitution’s adoption, this understanding was confirmed in one of the very first Patent Acts: the Patent Act of 1793 defined patent-eligible subject as “any new and useful art, machine, manufacture or composition of matter”—in other words, the means for the practical implementation of an advance in technology.

The 1952 Patent Act replaced the word “art” with the more modern term “process,” but it made clear that it was not changing the meaning of the word,2 which continues to be defined by the industrial context of the words that surround it: machines, manufactures, and compositions of matter.3 This same statutory standard, virtually unchanged since 1793, remains the law today.

The current eligibility jurisprudence retains this focus on technological progress and can be distilled into two basic rules:

1. A patent must claim an advance in technology and cannot merely reflect a non-technological innovation in methods of organizing human activity, such as a business or financial method;4 displaying or curating information for human consumption;5 detecting or anticipating fraud or other human wrongdoing;6 or games and aesthetic creations.7

2. A patent must claim a practical implementation, as opposed to claiming mere goals or results,8 the context in which the invention is implemented,9 or an underlying law of nature or scientific principle in the abstract.10

These basic concepts are not confusing or overly complex. To the contrary, they are relatively simple and have proven to allow for consistent and predictable application by the USPTO and the courts.

Based on data from the decade since the Supreme Court’s decision in Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014), it has become clear that the current test for patent eligibility is—in fact—being predictably applied. For example, 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.11 This study found that in the initial years after the Supreme Court’s Alice decision, both rejection rates and examiner variability increased. Over time, however, the USPTO and the patent bar absorbed the teachings of Alice: the USPTO’s study also found that by 2020, both rejection rates and examiner variability were lower than they were before the Alice case was decided.12

These decreases indicate that rejections under section 101 are both less frequent and more consistent today than they were before the Alice decision, which is precisely the opposite of what the stakeholders advocating reform contend. A review of the raw data on USPTO office actions confirms the conclusions of the USPTO study. After an initial spike, patent eligibility rejections appear to have fallen to rates that are equivalent to or lower than the pre-Alice rates. Assuming that the USPTO is not simply flouting the law, the only plausible explanation for this is that patent applicants are successfully predicting how examiners will assess patent eligibility.