Subject matter eligibility

Starting in 2014, we’ve issued guidance explaining how our patent examiners should evaluate claims for patent subject matter eligibility under 35 U.S.C. 101. This guidance was in response to decisions from the U.S. Supreme Court on claims reciting judicial exceptions including abstract ideas, laws of nature, and natural phenomena, as well as feedback received from the public. Since then, we have issued several supplements to this guidance based on judicial decisions and public feedback. 

Examination guidance

The Office's current eligibility guidance is in Manual of Patent Examination Procedure (MPEP) Sections 2103, 2104, 2105, 2106 and 2106.03 through 2106.07(c). Although the references to the 2014 IEG and its updates should now be directed to the MPEP, please note that no changes have been made to current examination practice with respect to eligibility. Further, because rejections are based on the substantive law, the incorporation of the Office's guidance into the MPEP does not affect pending eligibility rejections or create new grounds of rejection.

Examples

Below are example sets illustrating exemplary subject matter eligibility analyses of hypothetical claims and claims drawn from case law. These examples are a teaching tool to assist examiners and the public in understanding how the Office applies the eligibility guidance in certain fact-specific situations.

The index of examples provides information about the examples, including subject matter, statutory category, judicial exception (if any), and relevant considerations.

Other materials

These documents provide summaries and additional information for use with the Office's eligibility guidance.

How to comment

We are interested in receiving public feedback on our subject matter eligibility guidance, and particularly our guidance in the Berkheimer memorandum. To ensure consideration, written comments directed to the Berkheimer memorandum must be received on or before August 20, 2018.

Anyone may submit written comments to Eligibility2018@uspto.gov. Email comments submitted in plain text are preferred, but also may be submitted in ADOBE® portable document format or MICROSOFT WORD® format. Because comments will be available to the public, information that is not desired to be made public, such as an address or a phone number, should not be included in the comments.

Comments are available for public viewing here:

Events

The USPTO has held several events to discuss patent subject matter eligibility and receive feedback from interested members of the public.

Archive

You may also view past guidance documents by their date of issuance, but please take note that these documents have been incorporated into the MPEP.