Posts Tagged: "patent allowance"

In an ideal world, your chance of getting a patent allowed is based on the merits of your patent application and independent of the largely random assignment of the patent examiner.  As any patent attorney knows, however, this is not the case.  Some examiners allow patents too easily and others seem predisposed against allowing any patents at all… The patent application grant rate across the USPTO is 66%.  One would expect that a distribution of examiner grant rates would follow a bell-like curve with a reasonably small standard deviation, but that is not what the data shows.

After several years in which the U.S. Patent and Trademark Office (PTO) did not seem to have an official position on the issue, and many Patent Trial and Appeal Board (PTAB) panels took a position that was clearly at variance with the Administrative Procedure Act (APA), the PTO recently seems to be acquiescing to principles that the patent bar has been urging for years: (a) the PTO is subject to the same Administrative Procedure Act obligations as any other agency, and therefore cannot make factual findings without substantial evidence, and (b) there’s no carve-out for factual findings underlying § 101 subject matter eligibility rejections.