Stephen T. Schreiner

The year 2025 was one of profound change at the U.S. Patent and Trademark Office (USPTO). The magnitude and rate at which changes were implemented is unprecedented. The size and role of the Patent Trial and Appeal Board (PTAB) in America Invents Act (AIA) proceedings like inter partes reviews (IPRs) was completely overhauled.

Subject matter eligibility has been the most confounding and unpredictable issue in patent law since the Alice decision issued in 2014, especially for inventions involving the computer arts. Of course, computers are now ubiquitous and are involved in the implementation of not just electronics, but also mechanical devices, drug administration, and so on. The Alice decision touches many different types of inventions.

We have written before about the Patent Trial and Appeal Board’s (PTAB’s) 70% all-claims invalidation rate. That article explained (using numbers from the PTAB statistics page) that when a patent is subjected to an IPR, the all-claims invalidation rate is 70%. The all-claims invalidation rate is the rate at which the PTAB finds all challenged claims invalid (unpatentable), effectively killing off the patent. The all-claims invalidation rate is not just high; it has also varied considerably over the years, which raises additional concerns.

The recent decision in iRhythm Technologies v. Welch Allyn Inc., IPR2025-00377, et al. (Director Review: June 6, 2025) establishes a new and independent basis for discretionary denial: petitioner’s prior knowledge of the patent coupled with a failure to seek earlier review. This is the first decision explaining how the “settled expectations” consideration can be applied to grant discretionary denial.

It’s no secret that the patent eligibility inquiry under Alice is infamous for its subjectivity and unpredictability, which is what happens when courts refuse to provide clarity and instead embrace a vague and indefinite standard that can mean different things to different people. Indeed in Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1350 (Fed. Cir. 2018), Judge Plager’s dissent identified the absence of a definition as the root problem: “The phrase ‘abstract ideas’ is a definitional morass … There is no single, succinct, usable definition anywhere available.” And that allows judges on every level to do whatever they want without any structural tether to the law.