by Dennis Crouch
The Patent Trial and Appeal Board (PTAB) has doubled its rate of reversing Section 101 rejections since Director John Squires took office, according to my new analysis of ex parte appeal decisions involving eligibility challenges from 2024 and 2025. The reversal rate, which hovered between 8% and 12% for most of 2024 and early 2025, jumped to 18% in October 2025 and spiked to 29% in November. A recent rehearing decision in Ex parte Mercer, Appeal 2024-002371 (PTAB Oct. 31, 2025), illustrates one aspect of the Board's new approach: demanding evidentiary support for findings that claimed elements are "well-understood, routine, conventional activity" under Alice step two.
The chart above shows the percentage of Section 101 rejections reversed by the Board (without a new ground of rejection) in ex parte appeals, by month. As I discussed in October, the Board's Section 101 reversal rate began climbing shortly after Director Squires took office. Dennis Crouch, PTAB Responds to New Director with Increased § 101 Reversals, Patently-O (Oct. 2025). The trend has accelerated. The November 2025 reversal rate of 29% represents nearly a threefold increase from the rates that prevailed through most of 2024.