Our subject matter eligibility guidance explains how Office personnel including patent examiners should evaluate claims for patent subject matter eligibility under 35 U.S.C. 101.
The Office's current eligibility guidance is found in the Ninth Edition, Revision 10.2019 (revised June 2020) of the Manual of Patent Examination Procedure (MPEP), and particularly Sections 2103 through 2106.07(c).
Because the MPEP now incorporates the 2019 Revised Patent Subject Matter Eligibility Guidance (2019 PEG), October 2019 Patent Eligibility Guidance Update (October 2019 Update), and the Berkheimer Memo, all references to those materials should now be directed to the MPEP. See the MPEP Change Summary for an explanation of the changes. This incorporation does not change 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.
Below are example sets illustrating exemplary subject matter eligibility 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.
- October 2019 Examples 43-46 (issued October 17, 2019)
- 2019 PEG Examples 37 through 42 (issued January 7, 2019)
- Examples 1-36 (issued between December 16, 2014 through December 15, 2016)
The index of examples provides an overview of the relevance of Examples 1-46 under current guidance.
These documents provide summaries and additional information for use with the Office's eligibility guidance.
- Chart of Subject Matter Eligibility Court Decisions (updated October 17, 2019)
- Form paragraphs (posted January 8, 2019)
- Frequently Asked Questions (posted January 8, 2019)
- Sample Rejection (posted January 8, 2019)
- Training materials
How to comment
We are interested in receiving public feedback on our subject matter eligibility guidance, and particularly our guidance in the October 2019 Update, which was incorporated into MPEP 2106.04(a) and (d). Feedback on the October 2019 Update, or on any other patent eligibility issue, is requested by October 15, 2022.
Comments must be submitted through the Federal eRulemaking Portal. To submit comments, navigate to the Patent Subject Matter Eligibility Guidance docket page by selecting the provided link, or by visiting www.regulations.gov, entering docket number PTO-P-2022-0026 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 this notice 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.
- Comments received in response to the 2019 Revised Subject Matter Eligibility Guidance
- Comments received in response to the October 2019 Update
- Comments received in response to the September 2022 Request for 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.