As we mark the three-year anniversary of the Alice decision, the case’s effects have come into focus quite clearly. About 64% of all § 101 rejections now cite Alice, and that percentage has only been on an upward trend since the case was decided. Applicants who receive a § 101 rejection have about a 61% chance of getting around it, but that chance drops to about 50% if the § 101 rejection cites Alice. Overall, only 55% of applicants who receive an Alice rejection on a particular application will ever receive an allowance on the same application, giving the average applicant about a 50/50 chance of success or failure.
However, these numbers are merely averages. Some applicants do better, some do worse. There are also several law firms out there who manage to buck the trends and have Alice allowance rates that are surprisingly high. A few are listed below.
(To be eligible for inclusion, all firms must have had at least 100 applications disposed that received at least one Alice rejection at some point in their prosecution histories).
10. Fenwick & West (72.8%)
9. Yee & Associates (74.3%)
8. Fitzpatrick Cella Harper & Scinto ((75.3%)
7. Lowenstein Sandler (76.0%)
6. DeLizio Law (76.1%)
5. Jefferson IP Law (76.9%)
4. Van Pelt Yi & James (77.3%)
3. Ryan Mason & Lewis (77.8%)
2. Shumaker & Seiffert (80.7%)
1. Neal Gerber & Eisenberg (84.6%)
Don't see your firm on this list? Don't worry. Alice is a tough nut to crack, and even the best could use some help sometimes. That's why Juristat is here is to guide patent prosecutors who work with software and e-commerce technologies through through the challenging post-Alice legal landscape they face.
Juristat offers big data analytics tools to patent prosecutors to help them overcome some of the thorniest dilemmas they face in their day-to-day practices, including getting around Alice rejections. Using data, patent attorneys can gain a clearer understanding about exactly how their examiner interprets the Alice decision, giving them the opportunity to tailor their arguments in response to an Alice rejection. Additionally, data allows patent attorneys to predict their examiner’s next move, preventing the wasting of time and resources on logically ineffective prosecution strategies. Finally, data allows practitioners to discover their strengths and market them to clients who face long odds of obtaining software patents in an increasingly competitive legal market.