Takeaway: Two-thirds of the approximately 600 applicants who received invitations from the USPTO to delay eligibility decline the opportunity to do so.

In response to the U.S. Patent and Trademark Office launching the Deferred Subject Matter Eligibility Response pilot program, approximately only one-third of patent applicants accepted the offer to postpone dealing with patent eligibility rejections.

When a patent examiner rejects a patent application on both eligibility grounds and also grounds like obviousness, participants in the pilot program can choose to initially respond only to the noneligibility rejections. The thought is that by making arguments to address issues like obviousness and anticipation, applicants may also be able to resolve the examiner’s concerns about eligibility without expending time and money.