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Tracking AI Prosecution Trends at the U.S. Patent Office

Tracking AI Prosecution Trends at the U.S. Patent Office

Following last week’s post on this blog (AI Patent Trends in the U.S. Patent Office: Is the U.S. Losing Its Lead?), we look deeper into the filing data of AI applications to better understand how the USPTO’s treatment of inventions in this field have evolved over time. AI applications are increasing rapidly, but what happens when these applications get into substantive prosecution? Patent practitioners who understand this information can better help their clients avoid some of the pitfalls present, potentially resulting in higher allowance rates and less office actions to disposition. The data presented throughout this post was compiled using Juristat and focuses on the USPTO’s Art Units which handle the greatest number of AI filings (2122, 2129, 2121, 2124, 2123, 2128, 2127), further filtered by USPC 706, which relates to “Data Processing – Artificial Intelligence.”

Data shows that since at least 2001 (as far back as Juristat’s data goes) the average allowance rate for AI filings sits at 80%, which is slightly higher than USPTO’s overall allowance rate of 75%. However, as shown in Table I and Figure I, reproduced below, the allowance rate of AI applications has experienced a few notable peaks and dips. Most notably, applicants saw their lowest allowance rate in 2018, at a mere 62%. This low point in 2018 was the culmination of declining allowance rates, following the Supreme Court’s 2014 decision in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208 (2014). The low point in 2018 has since recovered significantly, no doubt in large part due to the USPTO’s January 2019 issuance of Patent Subject Matter Eligibility Guidance (“2019 PEG”),   which marked a shift in the USPTO’s review process, generally leading to increased allowance of patent applications facing scrutiny over subject matter eligibility.

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