Beyond the Noise: Unpacking Four Years of Data on PTAB’s Consistent § 101 Hostility

The state of patent eligibility appeals under 35 U.S.C. § 101 before the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO) is defined by a singular, overwhelming finding — abysmally low success rates for applicants. An analysis of PTAB decisions from 2021 through 2024 reveals that the PTAB consistently upholds examiner rejections of patent claims as unpatentable subject matter, rendering the appeal process for these cases a highly risky and often futile endeavor. [1] [2] [3] [4]

The PTAB’s persistently high rate of affirming examiner § 101 rejections stands in stark contrast to that body’s overall affirmance rate for other grounds of rejection, such as novelty (§ 102) or obviousness (§ 103). The statistical evidence collected from substantive § 101 appeals paints a bleak picture for applicants, with the PTAB’s affirmance rate hovering near or above 90% in recent years: it was 87.1% in 2021 (meaning applicants lost in approximately seven out of every eight appeals), ticked up slightly to 88.4% in 2022, and peaked at 91.1% in 2023, before remaining stubbornly high at 88.6% in 2024.

This narrow probability of success (approximately 9% to 12% in any given year) is roughly the same chance as flipping a coin three times and getting no heads. By comparison, the PTAB’s overall affirmance rate for all grounds of rejection is typically around 58%, underscoring the severe and unique disadvantage faced by § 101 appellants. For those seeking recourse against an unyielding examiner, the PTAB offers little remedy.

These skewed outcomes are caused by structural flaws in the current patent eligibility jurisprudence. The Supreme Court’s two-step framework set forth in Alice Corp. v. CLS Bank Int’l provides insufficient objective criteria for lower tribunals and the USPTO. The Alice test deliberately left the definitions of what constitutes an “abstract idea” and when an “inventive concept” is sufficient to transform an idea into eligible subject matter ill-defined. This vagueness, compounded by a smattering of contradictory § 101 decisions from the Federal Circuit, has created a fertile ground for arbitrary and conclusory reasoning. The PTAB has responded to the test’s ambiguity by generally erring on the side of ineligibility. The high affirmance rate is less a reflection of the legal merits of the examiner’s rejections and more the predictable outcome of an eligibility test that is inherently weighted against applicants and lacks objective boundaries. The result is a body of law where a claim’s eligibility often depends heavily on its framing and the analogy used, leading to absurd outcomes and causing systemic issues in patent law.

The high affirmation rates are not evenly distributed across all technical fields, revealing disparities tied to the USPTO’s classification system. The Technology Centers (TCs) 3600 and 3700, which handle the vast majority of business method and software-implemented business method applications, are by far the most hostile environments for § 101 appeals, consistently showing the highest rates of affirmance and generating the vast majority of all such appeals. These TCs have seen affirmance rates exceeding 95% in certain years. While less extreme, the affirmance rate for TC 2100 (computing technologies) has also remained high (over 85% in 2023), confirming that the current § 101 practice is having a deleterious impact on software patenting in general.

Furthermore, the PTAB’s affirmances under the “abstract idea” exclusion are heavily concentrated in just two main categories, reflecting where it perceives the claimed subject matter to fall short under Step 2A of the Alice framework. The most prevalent category used to characterize claims as abstract is “methods of organizing human activity,” frequently applied to business methods and financial applications. Closely following this is the “mental processes/steps” category, which has seen increasing application in recent years. This is particularly noticeable in appeals involving cutting-edge AI-based inventions, where the PTAB appears to be characterizing claims – especially those directed to automation or complex computational tasks previously done by a person — as merely operations that can be performed in the human mind, thereby rejecting them despite any underlying technical improvements. While USPTO leadership has recently attempted to pump the brakes on knee-jerk § 101 rejections of certain AI-related claims, it remains to be seen what effect this will have.

Compounding the risk for applicants is the PTAB’s practice of issuing a new ground of rejection on its own initiative. Data from 2023 and 2024 shows that in approximately 9-10% of cases appealed on other grounds (§ 102 or § 103), the PTAB introduced a new § 101 rejection. This means an applicant can successfully overcome an examiner’s rejections for novelty or obviousness, only to have the PTAB unilaterally introduce the issue of subject matter eligibility for the first time. Again, the USPTO leadership has recently pushed back on these sua sponte § 101 rejections, but it is too soon to tell whether their directive will curtail this practice.

Given the near-certainty of an examiner affirmance, the recommendation for applicants is to think twice about appealing a § 101 rejection to the PTAB. Indeed, appeals on grounds of subject matter eligibility should be a last resort. Applicants are better off focusing on working with the examiner to find allowable subject matter, to the extent that the examiner is amenable to doing so. Applicants should also employ TC steering tools prior to the initial application filing to avoid the most hostile TCs.

The most effective strategy remains to avoid the § 101 quagmire altogether where possible by drafting the claims and specifications to cover the technical aspects of the invention in a specific fashion that clearly sets forth its advances over the prior art. Writing the specification to describe how the technical improvement solves a technical problem can also be helpful.

Regardless, the persistent, high § 101 affirmance rates confirm a systemic disadvantage for applicants, particularly affecting startups and small businesses that rely on enforceable patents to raise capital and compete. Absent a fundamental change, whether through intervention by Congress or a clarification from the Supreme Court, the PTAB will continue to operate as a consistently hostile venue, diminishing the value of patents for a wide swath of innovative technologies.

[1] Michael Borella and Ashley Hatzenbihler, “Think Twice About Appealing a § 101 Rejection to the PTAB,” Patent Docs, September 13, 2022. https://patentdocs.org/2022/09/13/think-twice-about-appealing-a-101-rejection-to-the-ptab/

[2] Michael Borella and Ashley Hatzenbihler, “PTAB Remains Hostile to Section 101 Appeals,” Patent Docs, January 31, 2023. https://patentdocs.org/2023/01/31/ptab-remains-hostile-to-section-101-appeals/

[3] Michael Borella, Mackenna Dunn, and Garrett “Jake” Lee, “91%: That is the Rate at Which the PTAB Affirms Examiner Section 101 Rejections,” Patent Docs, August 12, 2024. https://patentdocs.org/2024/08/12/91-that-is-the-rate-at-which-the-ptab-affirms-examiner-section-101-rejections/

[4] Michael Borella and Walter DeGroft, “PTAB § 101 Appeal Stats for 2024: The More Things Stay the Same, the Worse They Remain,” Patent Docs, August 25, 2025. https://patentdocs.org/2025/08/25/ptab-101-appeal-stats-for-2024-the-more-things-stay-the-same-the-worse-they-remain