Revisiting Sixteen Years of §101 After a Data Correction

Patent, Patentable Subject Matter, USPTO News

by Dennis Crouch

Three weeks ago I wrote a big post on §101 rejection rates from the past 16 years pulled from several million office actions -- and also arguing that examiner behavior on eligibility tracks USPTO administrative policy more closely than it tracks Supreme Court doctrine. See Dennis Crouch, Sixteen Years of §101: What Actually Moves Examiners, Patently-O (May 8, 2026). After publishing, I went back through the collection pipeline and found that I had been missing a small, but meaningful slice of the data. Two errors: the optical-character-recognition (OCR) step had been silently failing on the longest office actions, and the bulk USPTO dataset itself had dropped a substantial number of rejections that I then reconstructed using the USPTO API (pulling and parsing each retrieved action individually). I have now reprocessed the full series through May 15, 2026 (adding an additional week of data). The corrected chart does not disturb the central thesis, but it does provide additional insight.

Corrected versus pre-correction Section 101 rejection rate series, 2010-2026

The chat here shows the corrected series (solid) against the original, pre-correction version (dashed). The two are nearly identical through early 2019 but then diverge afterward, with the gap widening through 2024 and 2025.

What you see here is that the post-2019 recovery is substantially larger than my original chart showed, carrying the rejection rate back up to roughly 15.5% by mid-2025, within striking distance of the pre-PEG peak. The most recent decline, running through the Stewart and Squires tenures, is also larger than the original series indicated, though it remains small set against the size of the post-2019 trajectory.

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Polar Electro’s New § 101 Cert Petition: When Courts Do the Challenger’s Job

CAFC, Patent, Patentable Subject Matter, Supreme Court

by Dennis Crouch

Two Finnish sports-tech companies have been litigating U.S. Patent No. 6,537,227 in a Utah federal court since 2017. Polar Electro Oy — the heart rate monitor maker — owns the patent, which claims a process for estimating energy expenditure during exercise by combining a measured heart rate with a personalized physiological reference value tied to VO2max. Firstbeat Technologies Oy, a physiological analytics company acquired by Garmin in 2020, moved for summary judgment of patent ineligibility under 35 U.S.C. § 101 but, according to the record, supplied no prior art, no expert testimony, and no developed conventionality theory. The district court granted the motion anyway, assembling its own analysis from the prosecution history. The Federal Circuit affirmed without opinion (Rule 36). Polar is now asking the Supreme Court to take up three big questions. Polar Electro Oy v. Firstbeat Technologies Oy, No. 25-1268 (U.S. petition filed May 2026).

Questions:

  • Whether a court may construct its own invalidity argument — independently identifying evidence and assembling rationales — when the challenger raised the defense but failed to support it, especially given § 282's presumption of validity and the clear-and-convincing standard.
  • Whether a process that takes a real-world physiological input and uses it within an improved procedure to produce a more accurate technological result remains eligible under Diamond v. Diehr, 450 U.S. 175 (1981).
  • Whether the judicially created exceptions for abstract ideas, laws of nature, and natural phenomena are impermissible judicial legislation the Court should overrule in favor of the statutory text.

The first question is the most legally ripe; the last is the most ambitious; the middle is the one the Court has repeatedly declined to resolve.

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Time Machines, Cold Fusion, and a Glucose Problem: A 2026 Report on § 101 Utility

Patent, Patentable Subject Matter, USPTO News

Utility rejections under 35 U.S.C. § 101 have become something of a relic at the USPTO. The Office mailed mailed over 650,000 office action rejections in 2025 - only 294 raised a utility ground. And, as you'll see below, utility rejections are typically an indication that the underlying disclosure is genuinely strange.

Utility-prong § 101 rejections as a share of all non-final and final office actions, 2008-2025

I pulled a small random sample of utility-bearing office actions mailed in early 2026 and want to walk through each:

  1. A pro se application for "curing leukemia and easy births" through time travel and "inspiration zones";
  2. Energy production by recreating black hole conditions in a heated steel enclosure;
  3. A cold-fusion-adjacent device, driven by "cycled electromagnetic radiation";
  4. A biochemistry case, now in its thirteenth year of prosecution, about whether melanin can synthesize glucose from carbon dioxide; and
  5. A room-temperature-superconductor application out of one of the most distinguished condensed-matter labs in the country.

This is a useful sample because each draws on a different strand of the utility doctrine, all tracing back through Brenner v. Manson, 383 U.S. 519 (1966), and the Federal Circuit's "implausible scientific principles" standard from In re Brana, 51 F.3d 1560 (Fed. Cir. 1995), that authorizes examiners to refuse claims premised on physics the applicant has not made credible.

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Sixteen Years of §101: What Actually Moves Examiners

Patent, Patentable Subject Matter, USPTO News

by Dennis Crouch

In Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012), the Supreme Court set out its now familiar two step framework for determining eligibility under 35 U.S.C. § 101.  But the patent system did not really shift until two years later when the Court reiterated the same test. Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014).

Part of the story is that the legal framework only does some of the work.  In any system, we also have to look at how that law is administered.  For me, this means patent examination data. I have been pulling office action data going back to 2010 (several million rejections in total) and using a custom classifier to identify §101 rejections.

The headline finding is that ... (I know this is rude, but this data is so interesting that I decided keep it just for subscribers).

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Pairing Down: Federal Circuit Affirms § 101 Dismissal of Vehicle-Mode Notification Patent

CAFC, Patent, Patentable Subject Matter

The Federal Circuit's nonprecedential decision in TJTM Technologies, LLC v. Google LLC, No. 25-1218 (Fed. Cir. May 5, 2026), affirms a N.D.Cal. R.12(b)(6) dismissal of TJTM's infringement suit on § 101 grounds. The patent at issue, U.S. Patent No. 8,958,853, claims a mobile device that automatically enters an "inactive mode" upon pairing with a vehicle, suppressing call and text notifications and transmitting an automated away message to senders. TJTM accused certain Google Android distracted-driving features of infringement. Judge Trina Thompson granted Google's motion to dismiss after applying the two-step framework of Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014), and a Federal Circuit panel of Judges Dyk, Chen, and Stark (with Judge Chen writing) affirmed in a brief opinion.

Representative claim 1 recites a generic mobile device with three structural components (a wireless communication module, a processor, and a memory) followed by a sequence of programmatic steps: providing a graphical user interface through which a user customizes inactive-mode functions, receiving a user selection to auto-initiate inactive mode upon vehicle pairing, receiving the away-message text, automatically initiating inactive mode in response to pairing, and upon an incoming communication transmitting the away message while suppressing the audible, visual, or vibration cues. The claim says nothing about how the Bluetooth pairing handshake works, how the OS-level interrupt suppression is accomplished, or how the away message is generated and routed. The Federal Circuit found this combination of generic components and conventional steps insufficient to clear either Alice prong.

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Six on the Bench: The Federal Circuit’s Pending En Banc Patent Petitions

CAFC, Damages, Design Patent, Obviousness, Patent, Patentable Subject Matter

by Dennis Crouch

Six petitions for rehearing or rehearing en banc are currently pending before the Federal Circuit in patent cases.  I wanted to do a quick run through to highlight the unusual concentration of vehicles for doctrinal correction.  The court has been granting en banc petitions at a historically low rate of 0-1 per year, and several of the pending petitions explicitly ask whether the court will continue that trajectory.

Of the six petitions still pending, I see the post-EcoFactor Rule 702 petition in Barry v. DePuy and the Egyptian Goddess/Gorham challenge in Range of Motion v. Armaid as the most likely to attract en banc attention.

En Banc Rehearing at the Federal Circuit: Federal Rule of Appellate Procedure 35 and Federal Circuit Rule 35 govern en banc rehearing. A petition must demonstrate that the panel decision conflicts with a prior decision of the court or that the case presents a question of exceptional importance. The full court, including senior judges who participated in the panel, votes on whether to grant. A grant requires a majority of judges in regular active service. When the bench is full (12 judges), seven votes are needed. It is not clear to me whether the court is counting Judge Newman who has been "temporarily" removed from duty. If not, then only six votes would be needed.

Patent Eligibility Under § 101: Oasis Tooling

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Recalibration: Seven Months of PTAB § 101 Data

Patent, Patentable Subject Matter, USPTO News

by Dennis Crouch

In a January 2, 2026 post I reported that the Patent Trial and Appeal Board’s rate of reversing § 101 rejections in ex parte appeals had roughly doubled during the first weeks of Director John Squires’s tenure. Dennis Crouch, PTAB Doubles Section 101 Reversal Rate Under Director Squires, Patently-O (Jan. 2, 2026). The natural concern with that finding was that it covered only about twelve weeks of post-Squires data and could still be a short-run fluctuation. Seven months of additional decisions now let me revisit the question. The shift has solidified with PTAB reversing examiners at about double the rate as prior to Squires swearing-in.

Although Dir. Squires has repeatedly discussed the issue and his push for weaking 101 threshold, I wanted to look a bit deeper into what is driving the shift. One additional obvious candidate was roster turnover. The 2025 Fork-in-the-Road (FORK) program and DOGE related resignation offerings reduced PTAB headcount materially, and a fresh panel draw could plausibly explain much of the movement. The data, however, rules out turnover as the primary driver. I looked at the data on particular PTAB judges, and found that individual judges have (statistically) shifted their behavior.  Mean reversal rate moved from 11.0% to 22.3%, a +11.3 point within-judge — a shift that is slightly larger than the aggregate +11.07 point shift. The conclusion is that the Board’s approach to § 101 has been recalibrated from the top, and that recalibration has operated primarily by changing how incumbent administrative patent judges vote rather than by replacing them.

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USPTO’s April Fool’s Prank Says the Quiet Part Out Loud

Patent, Patentable Subject Matter, USPTO News

by Dennis Crouch

The USPTO used its official GovDelivery email system this morning to announce a new AI tool for patent eligibility determinations: the "McConaughey Agentic Tasking Technology Helping Examiner Workload," or "MATTHEW." The tool, Director John Squires explained, will resolve the thorniest eligibility questions by rendering a simple verdict: if MATTHEW says your invention is "Alright, Alright, Alright," then it's "Alright, Alright, Alright" with the USPTO. Squires also casually mentioned that he was suspending "all applicable precedent, including Desjardins, Alice, and Mayo." Happy April Fool's Day.

The reference to McConaughey fits -- The actor's legal team registered a series of trademark over the past several months, including a "sensory mark" on his delivery of "Alright, alright, alright" from Dazed and Confused (1993). [YouTube][Specimen]

The press release is a genuine work of comedic craft, and it arrived through the same official channels the agency uses to announce rulemakings and pilot programs. It deserves to be read in full. Here it is:

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Guest Post: Improving PERA’s Eligibility Exclusions

Patent, Patentable Subject Matter

Guest Post by Professors Jeffrey A. Lefstin, UC College of the Law, San Francisco & Peter S. Menell, UC Berkeley Law

As Dennis reported last year, Senators Thom Tillis and Chris Coons re-introduced the Patent Eligibility Reform Act (PERA) in the Senate in May 2025, accompanied by a parallel bill in the House. Despite significant pushback on earlier versions of the bill, PERA 2025 changes only one aspect of the proposed new text for § 101: human genes that are merely “isolated,” but neither purified, enriched, altered by human activity, nor employed in a useful invention or discovery, will remain ineligible. That revision is essentially illusory, since vanishingly few useful claims will fail to meet the latter criteria.

The criticisms of our current patent eligibility regime are familiar. Jurisprudentially, the Mayo/Alice regime was founded on serious misunderstandings of both the historical record and of the intent behind the 1952 Patent Act. The Supreme Court’s reshaping of patent eligibility was based largely on its economic hunches, rather than the careful study such a foundational doctrine deserves. The Federal Circuit’s ‘abstract idea’ jurisprudence denies patentability to specific and inventive advances in data processing without ever justifying why it should do so, and often depends on distinctions so fine they are unintelligible to most observers. In biomedicine, between the decisions of the Supreme Court and the Federal Circuit, the United States has almost unintentionally backed into a regime where nearly all methods of diagnosis are ineligible, but nearly all methods of treatment are eligible — again with no economic justification for why that should be the case.

We agree with PERA’s ambition to write on a clean slate, and to separate patent eligibility under § 101 from questions such as claim scope and inventiveness that the drafters of the 1952 Act intended to be resolved under §§ 102, 103, and 112. But PERA’s approach to subject matter exclusions has serious flaws, as we and many others have pointed out. PERA excludes from patentability “[a] process that is substantially economic, financial, business, social, cultural, or artistic,” without suggesting how to determine whether a process is within those categories. More seriously, PERA then neuters that exclusion by exempting any process that “cannot practically be performed without the use of a machine or manufacture.” Under this language, any invention that requires the use of any human artifact — such as pencil or paper — is patent eligible. PERA would meaningfully exclude from the patent system only mental processes, and pure motions of the human body such as dance or sport moves. When it comes to the biomedical space, PERA’s exclusion of human genes and natural materials is redundant — but the real issue is that PERA makes no attempt to address concerns that patents on genes and other natural materials could encumber research.

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Two Voices on § 101: Agency Guidance Meets Judicial Skepticism

IPR, Patent, Patentable Subject Matter, Supreme Court

by Dennis Crouch

In Rideshare Displays, Inc. v. Lyft, Inc., No. 25-1132 (petition filed Mar. 23, 2026), the petitioner asks for clarification on when a court may disregard specific functional claim limitations in conducting the Alice patent eligibility analysis. The petition also raises a procedural question about the Federal Circuit's authority to raise and decide new factual arguments sua sponte on appeal.  Something unusual about the case - USPTO Dir. Vidal intervened at the Federal Circuit to defend the PTAB's eligibility holding, and the court reversed anyway.  I expect that Dir. Squires will be even more supportive. At the Supreme Court, the USPTO brief will be filed by the DOJ's SG, bringing a wider set of interests - and likely a less pro-patentee tone - than the USPTO’s Federal Circuit presentation.

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The Razor Returns: AIPLA Tells the Supreme Court That Alice Step Two Has Revived the Pre-1952 ‘Invention’ Requirement

Patent, Patentable Subject Matter, Supreme Court

by Dennis Crouch

The American Intellectual Property Law Association has filed an amicus brief urging the Supreme Court to grant certiorari in United Services Automobile Association v. PNC Bank N.A., No. 25-853 (U.S. filed Mar. 2, 2026). The AIPLA brief does not focus on the particular merits of USAA's mobile check deposit patents. Instead, it frames the case as an opportunity for the Court to correct what the brief calls a historical regression: the Federal Circuit's application of the Alice/Mayo eligibility framework has revived the same subjective "inventive concept" inquiry that the Patent Act of 1952 was specifically designed to eliminate. The brief, filed by Barbara Fiacco and Valerie Orellana of Foley Hoag on behalf of AIPLA, traces this argument through more than a century of patent law, from the commingled eligibility/obviousness/definiteness standards of the 19th century through the 1952 reforms and back to the present "confusion."

USAA's petition presents two questions:

  • Whether the Federal Circuit has wrongly extended the "abstract idea" prohibition to cover concrete technological processes; and
  • Whether it has improperly held that computer-implemented inventions are patent-eligible only if they improve the computer's own functionality.

In 2025, the Federal Circuit reversed a $218 million jury verdict for USAA, holding that its claims directed to mobile check deposit using a handheld device were ineligible. The Supreme Court has signaled some interest by issuing a "Response Requested" and PNC's response is now due April 8, 2026, following an extension. See Dennis Crouch, USAA Petitions SCOTUS: Is Mobile Check Deposit Just an "Abstract Idea"?, Patently-O (Jan. 19, 2026).

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Tracing the Quote: Everything that can be Invented has been Invented

Patent, Patentable Subject Matter

Charles H. Duell was the Commissioner of US patent office in 1899. Mr. Deull's most famous attributed utterance is that "everything that can be invented has been invented." Most patent attorneys have also heard that the quote is apocryphal.

In his 1989 article, Samuel Sass traced the quote back to 1981 book titled "The Book of Facts and Fallacies" by Chris Morgan and David Langford. Sass did his work well before Gore created the Internets, so I decided to take a fresh look at the research using Google. The following chart was created based on Google's electronic compilation of 12 million books. The chart shows the frequency that the phrase "everything that can be invented" shows up in the corpus, grouped by the year of publication of each book.

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