Subject matter eligibility

Our subject matter eligibility (SME) guidance explains how Office personnel including patent examiners should evaluate claims for patent subject matter eligibility under 35 U.S.C. 101.  

Examination guidance


The Office's current eligibility guidance is found in Section 2103 through 2106.07 of the Manual of Patent Examining Procedure (MPEP).  

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.



Below are example sets illustrating exemplary SME analyses of claims under the Office’s eligibility guidance. These examples are a teaching tool to assist examiners and the public in understanding how the Office applies its eligibility guidance in certain fact-specific situations. The analysis in the examples issued prior to the current guidance (Examples 1-36) still provide useful illustrations of eligible subject matter across a range of technologies. All claims indicated as eligible in these examples are still eligible under current guidance.

The index of examples Updated provides an overview of the relevance of Examples 1-49 under current guidance.

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 SME guidance, and particularly our guidance in the 2024 AI SME Update (FR Notice cite and link).  Feedback on the 2024 AI SME Update is requested by [insert date].

Comments must be submitted through the Federal eRulemaking Portal. To submit comments, navigate to the [insert docket page] by selecting the provided link, or by visiting, entering docket number PTO-P-2024-0026 on the home page, and clicking “search.” The site will provide a search results page listing all documents associated with this docket. Once on the docket page, find a reference to the 2024 AI SME Update and click on the “Comment Now!” icon, complete the required fields, and enter or attach your comments. Attachments to electronic comments will be accepted in ADOBE® portable document format or MICROSOFT WORD® format. Because comments will be made available for public inspection, information that the submitter does not desire to make public, such as an address or phone number, should not be included in the comments.


You may also view past guidance documents by their date of issuance. Please take note that these documents have been incorporated into the MPEP. Eligibility-related guidance issued prior to the Ninth Edition, Revision 10.2019 of the MPEP (revised June 2020) should not be relied upon. 


Please contact the Office of Patent Legal Administration for questions regarding the content of this web page.