USPTO guidance documents offset the uncertainty of Alice

With regard to the impact at the Patent Office, another recent empirical research study found that there was no reason to conclude "Alice had a causal effect on receiving § 101 rejections among software patent applications in general" and no evidence that "Alice increased the barrier of patentability for [many] technology areas in software."93 A different study by the USPTO analyzed the impact of Alice in patent prosecution and found that "the USPTO's efforts to clarify the Alice standard have substantially offset the uncertainty created by Alice."94 For example, the USPTO found that after issuance of its 2019 patent eligibility guidance document, in "Alice-affected technologies," applicants were 25% less likely to receive a first office action rejection under § 101, which amounted to a lower rejection rate than before Alice issued.95 A comparison between 2019 and 2014 may not be appropriate, however, since the set of patent applications after the 2019 guidance is different from the 2014 set of applications prior to Alice, and the relative decrease in rejections may have been influenced by factors other than the guidance, such as a decrease in Alice-susceptible applications.96 Nevertheless, the data shows a marked drop in rejections immediately after the guidance document issued as well as an overall lower § 101 rejection rate compared to before Alice issued.97 Moreover, the USPTO's research also found that the guidance document reduced examination uncertainty measured by the variability of § 101 first office action rejections across different patent examiners98 by 44% for Alice-affected [*15] technologies, which also was substantially below pre-Alice levels.99 This evidence suggests that patent applicants can expect more predictability in § 101 examination determinations than prior to the issued guidance, and perhaps even prior to Alice.