Contrary to what some might think, the Patent Trial and Appeal Board (PTAB) does not always affirm rejections under 35 U.S.C. § 101, as evidenced by its recent decision in Ex parte Krampe, Appeal 2013-010784; Appl. No. 12/653,741; Technology Center 3600 (March 31, 2016). In this case, the PTAB held that the Examiner had failed to state a prima facie case of patent-ineligibility of claims drawn to “[a] method of establishing credit on a vending device by a consumer.” For a more detailed discussion, see this post on the All Things Pros blog, which is where I learned of this decision.
As a comment to the afore-mentioned post emphasizes, the PTAB merely found that the examiner had failed to state a prima facie case of patent-ineligibility, not that the claims were patent-eligible. Who knows what will happen on remand back to the patent examiner. One might not want to read too much into this decision. Maybe the PTAB panel was simply trying to send a message back to the art unit to better explicate its Section 101 rejections. And that is certainly a message that all practitioners would endorse. In any event, Section 101 jurisprudence, even at the PTAB for ex parte appeals coming out of the business methods area (Tech Center 3600), is not monolithic. Many claims fall under Section 101, but occasionally even a business method can live to see another day.