In a recent post Dennis Crouch has provided two charts showing the grant rate of patents filed between 2003 and 2010, divided by technology area.  See http://patentlyo.com/patent/2014/08/update-patent-rates.html and http://patentlyo.com/patent/2014/08/patent-grant-technology.html.  These charts show that technology area 3620 – Electronic Commerce – has a relatively low allowance rate of about 35%.  However, this area also has the highest rate of still-pending applications, at about 23%.  The high rate of still-pending applications suggests either that, relative to the applications in the sample, the electronic commerce applications were filed later in the sampling period, or that the electronic commerce applications are, on average, taking longer to prosecute to completion (either allowance or abandonment).  Unfortunately, without more detail, these charts do little to explain why electronic commerce applications are taking longer to prosecute (if they are) or why electronic commerce applications are facing a below-average allowance rate.  One possible explanation for the low allowance rate is the additional § 101 hurdles presented byBilski and Alice, in particular the calling-out in Alice of a “fundamental economic practice” as an abstract idea.

With that background, this might be a good time to look at patents that were just issued, August 12, that are handled in Technology area 3620.  Unfortunately, the USPTO database does not allow searching by technology area, so I used class 705 Data Processing: Financial, Business Practice, Management, or Cost/Price Determination as a proxy.  In class 705, 81 patents were issued this week.  Of those, 77 include method claims, 45 include media claims, and 67 include system, device, machine, or apparatus claims.  Also of interest is the length of prosecution:

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The average pendency is 4 years, to the nearest year.  This is longer than the average pendency for all allowed cases, which is just over 3 years, as reported by the USPTO’s patent dashboard.  Accordingly, the longer pendency at least partially explains the higher number percentage of electronic commerce cases that remain pending before the Office.  The longer pendency itself is likely related to the lower rate of allowance – Examiners aggressively reject claims in this class, and practitioners have to fight harder and longer to get claims allowed – as well as the additional § 101 issues that applications in this class face.

With respect to § 101, while the Supreme Court in Alice decried the possibility that “patent eligibility” would “depend simply on the draftsman’s art,” it still seems likely that the Examiner corps will apply heuristics in determining whether a particular software-implemented invention is directed to an abstract idea or not.  My review of the first independent claims of the 81 issued patents did not show any common structural changes between this group of claims and pre-Alice claim sets.  Nonetheless, identifying terms that are frequently recited in the allowed cases may be helpful in drafting patent-eligible claims in the post-Alice environment.  A table of the frequency of such phrases in this sample follows.

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Domenico Ippolito