The Appeals Review Panel (“ARP”) of the U.S. Patent and Trademark Office (“USPTO”) has vacated a subject matter rejection lodged by the Patent Trial and Appeal Board (“Board”) to a machine learning patent application. The ARP has only convened twice since it was established by the USPTO in 2023 to review Board decisions at the discretion of the USPTO Director.
Earlier this year, the Board considered Ex parte Desjardins, an appeal of a rejected patent application concerning machine learning technology and artificial intelligence. While upholding the rejection lodged by the USPTO Examiner, the Board added of its own accord that the claims were impermissibly abstract under 35 U.S.C. § 101. As recently discussed in the IP Blog, claims directed to abstract subject matter can only be patented if the claims contain additional aspects that amount to “significantly more” than the abstract matter. Software patents frequently face this type of rejection.
Convened last month by USPTO Director John A. Squires, the ARP vacated the Board’s § 101 finding. The ARP highlighted “what is at stake” in the interpretation and development of § 101 law: “America’s leadership” in the “critical emerging technology” of artificial intelligence. This spontaneous administrative review seems to signal support by USPTO leadership for machine learning patent applications in the name of innovation, which may be encouraging to software developers seeking patent protection.
