For inventors and patent practitioners, securing a patent has always been a challenge—but when it comes to overcoming a § 101 rejection, the odds are stacked against applicants. The latest data from 2023 confirms a troubling trend: the Patent Trial and Appeal Board (PTAB) upheld examiner § 101 rejections a staggering 91% of the time. This marks a steady increase from 87.1% in 2021 and 88.4% in 2022, making it increasingly clear that appealing a § 101 rejection is more likely to end in disappointment than success.
Why Is the PTAB So Tough on § 101 Appeals?
The high affirmance rate isn’t just a reflection of weak applications being weeded out—it’s a symptom of a broken system. Ever since the Supreme Court’s Alice Corp. v. CLS Bank decision, the framework for determining patent eligibility has been a mess. The Federal Circuit has issued conflicting rulings, and the PTAB itself often ignores the USPTO’s own guidelines. This inconsistency has led to bizarre decisions, including rulings that a diamond-encrusted drill bit and a camera phone were somehow “abstract ideas.”
In practice, this legal chaos means that applicants face unpredictable outcomes, with decisions often feeling arbitrary rather than based on sound legal principles.
Where Do § 101 Appeals Get Hit the Hardest?
Looking at the numbers, it’s clear that some USPTO Technical Centers (TCs) are far harsher than others when it comes to § 101 rejections.
- TCs 3600 & 3700 (Business Methods & Financial Tech): These have the worst outcomes, with affirmance rates exceeding 95%. Since business method patents frequently land in these TCs, inventors in these fields face particularly steep odds.
- TC2100 (Computing Technologies): The affirmance rate here climbed to 85% in 2023, up from 80% in 2022. This suggests that even general software patents—not just business method patents—are struggling more than ever.
- Other TCs: While some technical centers have lower affirmance rates, there isn’t enough data to draw strong conclusions. That said, TCs 2400 and 2600 may offer more favorable outcomes for software-related applications.
What Types of “Abstract Ideas” Get Rejected Most Often?
The PTAB’s reasoning for § 101 rejections usually falls into three main categories:
- Mathematics (17% of affirmances)
- Mental Processes (48%)
- Methods of Organizing Human Activity (68%)
The overlap in these categories means that some applications get rejected for multiple reasons. Mental processes are the most common issue in TC2100, while TC3600 predictably has the highest percentage of “organizing human activity” rejections due to its focus on business methods.
The Hidden Danger: PTAB’s Surprise § 101 Rejections
If you think your appeal is safe because your examiner didn’t issue a § 101 rejection, think again. The PTAB has the power to introduce a new § 101 rejection, even if it wasn’t raised during examination. In 10% of cases, the PTAB issued fresh § 101 rejections, catching applicants off guard. This risk is especially high in TC2100, where examiners tend to be more lenient with § 101, only for the PTAB to later step in and shut down applications.
What’s the Best Strategy Moving Forward?
With such daunting statistics, appealing a § 101 rejection is rarely the best course of action. Instead, applicants should:
- Work with the examiner to amend claims and find a path to allowance, rather than immediately pursuing an appeal.
- Use TC steering tools to predict where an application will be assigned. Avoiding TC3600 and TC3700 can dramatically improve chances of success.
- Be prepared for an uphill battle if a § 101 appeal is unavoidable, and consider all possible claim amendments before taking the risk.
Final Thoughts
The PTAB’s 91% affirmance rate for § 101 rejections in 2023 is a wake-up call for inventors and patent attorneys. The current system is unpredictable, inconsistent, and incredibly challenging to navigate. While legislative or judicial reform may be necessary to fix the problem, for now, the best approach is to strategize early in prosecution—because once an application lands at the PTAB, the chances of success are slim.