USPTO interim guidelines request for comment – as text

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Formatting of the below text is a work in progress (25 Aug 2010). This is the second of two related documents published on news.swpat.org; the other is USPTO’s 101 Method Eligibility Quick Reference Sheet – as text.


DEPARTMENT OF COMMERCE

United States Patent and Trademark Office

[Docket No. PTO­P­2010­0067]

Interim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bilski v. Kappos

AGENCY: United States Patent and Trademark Office, Commerce.

ACTION: Notice; Request for comments.

SUMMARY: The United States Patent and Trademark Office (USPTO or Office) has prepared Interim Guidance for Determining Subject Matter Eligibility for Process Claims in view of Bilski v. Kappos (Interim Bilski Guidance) for its personnel to use when determining subject matter eligibility under 35 U.S.C. 101 in view of the recent decision by the United States Supreme Court (Supreme Court) in Bilski v. Kappos, No. 08­964 (June 28, 2010). It is intended to be used by Office personnel as a supplement to the previously issued Interim Examination Instructions for Evaluating Subject Matter Eligibility Under 35 U.S.C. 101 dated August 24, 2009 (Interim Instructions) and the memorandum to the Patent Examining Corps on the Supreme Court Decision in Bilski v. Kappos dated June 28, 2010. This guidance supersedes previous guidance on subject matter eligibility that conflicts with the Interim Bilski Guidance. Any member of the public may submit written comments on the Interim Bilski Guidance. The Office is especially interested in receiving comments regarding the scope and extent of the holding in Bilski.

DATES: The Interim Bilski Guidance is effective July 27, 2010. This guidance applies to all applications filed before, on or after the effective date of July 27, 2010.

Comment Deadline Date: To be ensured of consideration, written comments must be received on or before September 27, 2010. No public hearing will be held.

ADDRESSES: Comments concerning this Interim Bilski Guidance should be sent by electronic mail message over the Internet addressed to Bilski_Guidance@uspto.gov or facsimile transmitted to (571) 273­0125. Comments may also be submitted by mail addressed to: Mail Stop Comments–Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313­1450. Although comments may be submitted by facsimile or mail, the Office prefers to receive comments via the Internet.

The comments will be available for public inspection at the Office of the Commissioner for Patents, located in Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia, and will be available via the USPTO Internet Web site, (address: http://www.uspto.gov). Because comments will be available for public inspection, information that is not desired to be made public, such as an address or phone number, should not be included in the comments.

FOR FURTHER INFORMATION CONTACT: Caroline D. Dennison, Legal Advisor, Office of Patent Legal Administration, Office of the Associate Commissioner for Patent Examination Policy, by telephone at (571) 272­7729, or by mail addressed to: Mail Stop Comments– Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313­1450, marked to the attention of Caroline D. Dennison.

SUPPLEMENTARY INFORMATION: The USPTO has prepared interim guidance (Interim Bilski Guidance) for its personnel to use when determining subject matter eligibility under 35 U.S.C. 101 in view of the recent decision by the United States Supreme Court (Supreme Court) in Bilski. It is intended to be used by Office personnel as a supplement to the previously issued Interim Examination Instructions for Evaluating Subject Matter Eligibility Under 35 U.S.C. 101 dated August 24, 2009 (Interim Instructions) and the memorandum to the Patent Examining Corps on the Supreme Court Decision in Bilski v. Kappos dated June 28, 2010. The Interim Bilski Guidance is based on the USPTO’s current understanding of the law and is believed to be fully consistent with the decision in Bilski, the binding precedent of the Supreme Court, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and the Federal Circuit’s predecessor courts. The USPTO has also posted the Interim Bilski Guidance on its Internet Web site (http://www.uspto.gov).

Request for Comments

The Office has received and considered the comments regarding the Interim Instructions submitted in response to the Request for Comments on Interim Examination Instructions for Evaluating Patent Subject Matter Eligibility, 74 FR 47780 (Sept. 11, 2009), 1347 Off. Gaz. Pat. Office 110 (Oct. 13, 2009). See also Additional Period for Comments on Interim Examination Instructions for Evaluating Patent Subject Matter Eligibility, 74 FR 52184 (Oct. 9, 2009), 1348 Off. Gaz. Pat. Office 42 (Nov. 3, 2009) (extending the comment period until November 9,
2009).

Members of the public are invited to review the Interim Bilski Guidance (below) and provide comments. The Office is particularly interested in receiving comments in response to the following questions:

1. What are examples of claims that do not meet the machine-or-transformation test but nevertheless remain patent-eligible because they do not recite an abstract idea?

2. What are examples of claims that meet the machine-or-transformation test but nevertheless are not patent-eligible because they recite an abstract idea?

3. The decision in Bilski suggested that it might be possible to “defin[e] a narrower category or class of patent applications that claim to instruct how business should be conducted,” such that the category itself would be unpatentable as “an attempt to patent abstract ideas.” Bilski slip op. at 12. Do any such “categories” exist? If so, how does the category itself represent an “attempt to patent abstract ideas?”

Interim Guidance for Determining Subject Matter Eligibility for Process Claims in view of Bilski v. Kappos (Interim Bilski Guidance)

I. Overview: This Interim Bilski Guidance is for determining patent-eligibility of process claims under 35 U.S.C. 101 in view of the opinion by the Supreme Court in Bilski v. Kappos, 561 U.S. ___ (2010), which refined the abstract idea exception to subject matter that is eligible for patenting. A claim to an abstract idea is not a patent-eligible process.

This Interim Bilski Guidance provides factors to consider in determining subject matter eligibility of method claims in view of the abstract idea exception. Although this guidance presents a change in existing examination practice, it is anticipated that subject matter eligibility determinations will not increase in complexity for the large majority of examiners, who do not routinely encounter claims that implicate the abstract idea exception.

Under the principles of compact prosecution, each claim should be reviewed for compliance with every statutory requirement for patentability in the initial review of the application, even if one or more claims are found to be deficient with respect to the patent- eligibility requirement of 35 U.S.C. 101. Thus, Office personnel should state all non-cumulative reasons and bases for rejecting claims in the first Office action.

Section III of this Interim Bilski Guidance provides guidance on the abstract idea exception to subject matter eligibility as set forth in Bilski, and section IV of this Interim Bilski Guidance provides guidance on factors relevant to reviewing method claims for subject matter eligibility in view of Bilski. To aid examiners in implementing this guidance, a summary sheet of factors which may be useful for determining subject matter eligibility of a method claim is provided at the end of this Interim Bilski Guidance.

Section V of this Interim Bilski Guidance discusses how to make the determination of eligibility. To summarize, in order for the examiner to make a proper prima facie case of ineligibility, the examiner will evaluate the claim as a whole and weigh the relevant factors set forth in Bilski and previous Supreme Court precedent and make a determination of compliance with the subject matter eligibility prong of § 101. The Office will then consider rebuttal arguments and evidence supporting subject matter eligibility.

II. Summary: The Bilski Court underscored that the text of § 101 is expansive, specifying four independent categories of inventions eligible for protection, including processes, machines, manufactures, and compositions of matter. See slip op. at 4 (“In choosing such expansive terms * * * modified by the comprehensive `any’, Congress plainly contemplated that the patent laws would be given wide scope.”) (quoting Diamond v. Chakrabarty, 447 U.S. 303, 308 (1980)). The Court also made clear that business methods are not “categorically outside of § 101’s scope,” stating that “a business method is simply one kind of `method’ that is, at least in some circumstances, eligible for patenting under § 101.” Id. at 10­11. Examiners are reminded that § 101 is not the sole tool for determining patentability; where a claim encompasses an abstract idea, sections 102, 103, and 112 will provide additional tools for ensuring that the claim meets the conditions for patentability. As the Court made clear in Bilski:

The § 101 patent-eligibility inquiry is only a threshold test. Even if an invention qualifies as a process, machine, manufacture, or composition of matter, in order to receive the Patent Act’s protection the claimed invention must also satisfy “the conditions and requirements of this title.” § 101. Those requirements include that the invention be novel, see § 102, nonobvious, see § 103, and fully and particularly described, see § 112.

Id. at 5.

Therefore, examiners should avoid focusing on issues of patent-eligibility under § 101 to the detriment of considering an application for compliance with the requirements of §§ 102, 103, and 112, and should avoid treating an application solely on the basis of patent-eligibility under § 101 except in the most extreme cases.

III. The Abstract Idea Exception to Subject Matter Eligibility: There are limits on the scope of patent-eligibility. In particular, the Supreme Court has identified three specific exceptions to § 101’s broad patent-eligibility principles: Laws of nature, physical phenomena, and abstract ideas. See id.

The Office has been using the so-called “machine-or-transformation” test used by the Federal Circuit to evaluate whether a method claim qualifies as a statutory patent-eligible process. See Interim Examination Instructions For Evaluating Subject Matter Eligibility Under 35 U.S.C. 101 dated August 24, 2009 (“2009 Interim Instructions”). The Supreme Court stated in Bilski that the machine-or-transformation test is a “useful and important clue” and “investigative tool” for determining whether some claimed methods are statutory processes, but it “is not the sole test for deciding whether an invention is a patent-eligible `process.’ ” Slip op. at 8. Its primary objection was to the elevation of the machine-or-transformation test–which it considered to be “atextual”–as the “sole test” for patent-eligibility. Slip op. at 6­ 8, 16. To date, no court, presented with a subject matter eligibility issue, has ever ruled that a method claim that lacked a machine or a transformation was patent-eligible. However, Bilski held open the possibility that some claims that do not meet the machine-or-transformation test might nevertheless be patent-eligible.

Prior to adoption of the machine-or-transformation test, the Office had used the “abstract idea” exception in cases where a claimed “method” did not sufficiently recite a physical instantiation. See, e.g., Ex parte Bilski, No. 2002­2257, slip op. at 46­49 (B.P.A.I. Sept. 26, 2006) (informative), http://www.uspto.gov/ip/boards/bpai/decisions/inform/fd022257.pdf. Following Bilski, such an approach remains proper. A claim that attempts to patent an abstract idea is ineligible subject matter under 35 U.S.C. 101. See slip op. at 13 (“[A]ll members of the Court agree that the patent application at issue here falls outside of § 101 because it claims an abstract idea.”). The abstract idea exception has deep roots in the Supreme Court’s jurisprudence. See id. at 5 (citing Le Roy v. Tatham, 55 U.S. (14 How.) 156, 174­175 (1853)).

Bilski reaffirmed Diehr’s holding that “while an abstract idea, law of nature, or mathematical formula could not be patented, `an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.’ ” Id. at 14 (quoting Diamond v. Diehr, 450 U.S. 175, 187 (1981)) (emphasis in original). The recitation of some structure, such as a machine, or the recitation of some transformative component will in most cases limit the claim to such an application. However, not all such recitations necessarily save the claim: “Flook established that limiting an abstract idea to one field of use or adding token postsolution components did not make the concept patentable.” Id. at 15. Moreover, the fact that the steps of a claim might occur in the “real world” does not necessarily save it from a section 101 rejection. Thus, the Bilski claims were said to be drawn to an “abstract idea” despite the fact that they included steps drawn to initiating transactions. The “abstractness” is in the sense that there are no limitations as to the mechanism for entering into the transactions.

Consistent with the foregoing, Bilski holds that the following claim is abstract:

1. A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of:

(a) Initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate corresponding to a risk position of said consumer;

(b) Identifying market participants for said commodity having a counter-risk position to said consumers; and

(c) Initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions.

Specifically, the Court explains:

The concept of hedging, described in claim 1 and reduced to a mathematical formula in claim 4, is an unpatentable abstract idea, just like the algorithms at issue in Benson and Flook. Allowing petitioners to patent risk hedging would preempt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea.

Slip op. at 15.

Bilski also held that the additional, narrowing, limitations in the dependent claims were mere field of use limitations or insignificant postsolution components, and that adding these limitations did not make the claims patent-eligible. See id. Claims 1­9 in Bilski are attached as examples of claims that run afoul of the abstract idea exception.

The day after deciding Bilski, the Supreme Court denied certiorari in Ferguson v. Kappos, U.S. Supreme Court No. 09­1501, while granting, vacating, and remanding two other Federal Circuit section 101 cases. The denial of certiorari left intact the rejection of all of Ferguson’s claims. Although the Federal Circuit had applied the machine-or-transformation test to reject Ferguson’s process claims, the Supreme Court’s disposition of Ferguson makes it likely that the Ferguson claims also run afoul of the abstract idea exception. A representative Ferguson claim is:

1. A method of marketing a product, comprising:

Developing a shared marketing force, said shared marketing force including at least marketing channels, which enable marketing a number of related products;

Using said shared marketing force to market a plurality of different products that are made by a plurality of different autonomous producing company [sic], so that different autonomous companies, having different ownerships, respectively produce said related products;

Obtaining a share of total profits from each of said plurality of different autonomous producing companies in return for said using; and

Obtaining an exclusive right to market each of said plurality of products in return for said using.

The following guidance presents factors that are to be considered when evaluating patent-eligibility of method claims. The factors include inquiries from the machine-or-transformation test, which remains a useful investigative tool, and inquiries gleaned from Supreme Court precedent. While the Supreme Court in Bilski did not set forth detailed guidance, there are many factors to be considered when determining whether there is sufficient evidence to support a determination that a method claim is directed to an abstract idea. The following factors are intended to be useful examples and are not intended to be exclusive or limiting. It is recognized that new factors may be developed, particularly for emerging technologies. It is anticipated that the factors will be modified and changed to take into account developments in precedential case law and to accommodate prosecution issues that may arise in implementing this new practice.

Additional guidance in the form of expanded explanation and specific examples will follow in due course.

IV. Evaluating Method Claims for Eligibility: Where the claim is written in the form of a method and is potentially a patentable process, as defined in 35 U.S.C. 100(b), the claim is patent- eligible so long as it is not disqualified as one of the exceptions to § 101’s broad patent-eligibility principles; i.e., laws of nature, physical phenomena, and abstract ideas.

Taking into account the following factors, the examiner should determine whether the claimed invention, viewed as a whole, is disqualified as being a claim to an abstract idea. Relevant factors–both those in favor of patent-eligibility and those against such a finding–should be weighed in making the determination. Factors that weigh in favor of patent-eligibility satisfy the criteria of the machine-or-transformation test or provide evidence that the abstract idea has been practically applied. Factors that weigh against patent-eligibility neither satisfy the criteria of the machine-or-transformation test nor provide evidence that the abstract idea has been practically applied. Each case will present different factors, and it is likely that only some of the factors will be present in each application. It would be improper to make a conclusion based on one factor while ignoring other factors.

This additional guidance, which builds upon the 2009 Interim Instructions, is a factor-based inquiry. Although the following approach is a change, it is anticipated that subject matter eligibility determinations will not increase in complexity, particularly for examiners who do not routinely encounter claims that implicate the abstract idea exception. Examiners will recognize that the machine-or- transformation test set forth in Section II(B) of the 2009 Interim Instructions, although not the sole test for evaluating the subject matter eligibility of a method claim, is still pertinent in making determinations pursuant to the factors listed below. Examiners are referred to the summary sheet of factors provided at the end of this Interim Bilski Guidance which may be useful in determining subject matter eligibility of a method claim.

Factors To Be Considered in an Abstract Idea Determination of a Method Claim

A. Whether the method involves or is executed by a particular machine or apparatus. If so, the claims are less likely to be drawn to an abstract idea; if not, they are more likely to be so drawn. Where a machine or apparatus is recited or inherent in a patent claim, the following factors are relevant:

(1) The particularity or generality of the elements of the machine or apparatus; i.e., the degree to which the machine in the claim can be specifically identified (not any and all machines). Incorporation of a particular machine or apparatus into the claimed method steps weighs toward eligibility.

(2) Whether the machine or apparatus implements the steps of the method. Integral use of a machine or apparatus to achieve performance of the method weighs toward eligibility, as compared to where the machine or apparatus is merely an object on which the method operates, which weighs against eligibility.

(3) Whether its involvement is extrasolution activity or a field-of-use, i.e., the extent to which (or how) the machine or apparatus imposes meaningful limits on the execution of the claimed method steps. Use of a machine or apparatus that contributes only nominally or insignificantly to the execution of the claimed method (e.g., in a data gathering step or in a field-of- use limitation) would weigh against eligibility.

B. Whether performance of the claimed method results in or otherwise involves a transformation of a particular article. If such a transformation exists, the claims are less likely to be drawn to an abstract idea; if not, they are more likely to be so drawn. Where a transformation occurs, the following factors are relevant:

(1) The particularity or generality of the transformation. A more particular transformation would weigh in favor of eligibility.

(2) The degree to which the recited article is particular; i.e., can be specifically identified (not any and all articles). A transformation applied to a generically recited article would weigh against eligibility.

(3) The nature of the transformation in terms of the type or extent of change in state or thing, for instance by having a different function or use, which would weigh toward eligibility, compared to merely having a different location, which would weigh against eligibility.

(4) The nature of the article transformed, i.e., whether it is an object or substance, weighing toward eligibility, compared to a concept such as a contractual obligation or mental judgment, which would weigh against eligibility.

(5) Whether its involvement is extrasolution activity or a field-of-use, i.e., the extent to which (or how) the transformation imposes meaningful limits on the execution of the claimed method steps. A transformation that contributes only nominally or insignificantly to the execution of the claimed method (e.g., in a data gathering step or in a field-of-use limitation) would weigh against eligibility.

C. Whether performance of the claimed method involves an application of a law of nature, even in the absence of a particular machine, apparatus, or transformation. If such an application exists, the claims are less likely to be drawn to an abstract idea; if not, they are more likely to be so drawn. Where such an application is present, the following factors are relevant:

(1) The particularity or generality of the application. Application of a law of nature having broad applicability across many fields of endeavor weighs against eligibility, such as where the claim generically recites an effect of the law of nature or claims every mode of accomplishing that effect, such that the claim would monopolize a natural force or patent a scientific fact. (As an example, claiming “the use of electromagnetism for transmitting signals at a distance.”)

(2) Whether the claimed method recites an application of a law of nature solely involving subjective determinations; e.g., ways to think about the law of nature. Application of a law of nature to a particular way of thinking about, or reacting to, a law of nature would weigh against eligibility.

(3) Whether its involvement is extrasolution activity or a field-of-use, i.e., the extent to which (or how) the application imposes meaningful limits on the execution of the claimed method steps. An application of the law of nature that contributes only nominally or insignificantly to the execution of the claimed method (e.g., in a data gathering step or in a field-of-use limitation) would weigh against eligibility.

D. Whether a general concept (which could also be recognized in such terms as a principle, theory, plan or scheme) is involved in executing the steps of the method. The presence of such a general concept can be a clue that the claim is drawn to an abstract idea. Where a general concept is present, the following factors are relevant:

(1) The extent to which use of the concept, as expressed in the method, would preempt its use in other fields; i.e., that the claim would effectively grant a monopoly over the concept.

(2) The extent to which the claim is so abstract and sweeping as to cover both known and unknown uses of the concept, and be performed through any existing or future-devised machinery, or even without any apparatus.

(3) The extent to which the claim would effectively cover all possible solutions to a particular problem; i.e., that the claim is a statement of the problem versus a description of a particular solution to the problem.

(4) Whether the concept is disembodied or whether it is instantiated; i.e., implemented, in some tangible way. Note, however, that limiting an abstract idea to one field of use or adding token postsolution components does not make the concept patentable. A concept that is well- instantiated weighs in favor of eligibility.

(5) The mechanism(s) by which the steps are implemented; e.g., whether the performance of the process is observable and verifiable rather than subjective or imperceptible. Steps that are observable and verifiable weigh in favor of eligibility.

(6) Examples of general concepts include, but are not limited to:

  • Basic economic practices or theories (e.g., hedging, insurance, financial transactions, marketing);
  • Basic legal theories (e.g., contracts, dispute resolution, rules of law);
  • Mathematical concepts (e.g., algorithms, spatial relationships, geometry);
  • Mental activity (e.g., forming a judgment, observation, evaluation, or opinion);
  • Interpersonal interactions or relationships (e.g., conversing, dating);
  • Teaching concepts (e.g., memorization, repetition);
  • Human behavior (e.g., exercising, wearing clothing, following rules or instructions);
  • Instructing “how business should be conducted,” Bilski, slip op. at 12.

V. Making the Determination of Eligibility: Each of the factors relevant to the particular patent application should be weighed to determine whether the method is claiming an abstract idea by covering a general concept, or combination of concepts, or whether the method is limited to a particular practical application of the concept. The presence or absence of a single factor will not be determinative as the relevant factors need to be considered and weighed to make a proper determination as to whether the claim as a whole is drawn to an abstract idea such that the claim would effectively grant a monopoly over an abstract idea and be ineligible for patent protection.

If the factors indicate that the method claim is not merely covering an abstract idea, the claim is eligible for patent protection under § 101 and must be further evaluated for patentability under all of the statutory requirements,
including utility and double patenting (§ 101); novelty (§ 102); non-obviousness (§ 103); and definiteness and adequate description, enablement, and best mode (§ 112). Section 101 is merely a coarse filter and thus a determination of eligibility under § 101 is only a threshold question for patentability. Sections 102, 103, and 112 are typically the primary tools for evaluating patentability unless the claim is truly abstract, see, e.g., Bilski, slip op. at 12 (“[S]ome business method patents raise special problems in terms of vagueness and suspect validity.”).

If the factors indicate that the method claim is attempting to cover an abstract idea, the examiner will reject the claim under § 101, providing clear rationale supporting the determination that an abstract idea has been claimed, such that the examiner establishes a prima facie case of patent-ineligibility. The conclusion made by the examiner must be based on the evidence as a whole. In making a rejection or if presenting reasons for allowance when appropriate, the examiner should specifically point out the factors that are relied upon in making the determination. If a claim is rejected under § 101 on the basis that it is drawn to an abstract idea, the applicant then has the opportunity to explain why the claimed method is not drawn to an abstract idea. Specifically identifying the factors used in the analysis will allow the applicant to make specific arguments in response to the rejection if the applicant believes that the conclusion that the claim is directed to an abstract idea is in error.

The Interim Bilski Guidance is for examination guidance in light of the recent decision in Bilski. This guidance does not constitute substantive rule making and hence does not have the force and effect of law. Rejections will continue to be based upon the substantive law, and it is these rejections that are appealable. Consequently, any perceived failure by Office personnel to follow this guidance is neither appealable nor petitionable.

The Interim Bilski Guidance merely updates USPTO examination practice for consistency with the USPTO’s current understanding of the case law regarding patent subject matter eligibility under 35 U.S.C. 101 in light of Bilski. Therefore, the Interim Bilski Guidance relates only to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice. The USPTO is providing this opportunity for public comment because the USPTO desires the benefit of public comment on the Interim Bilski Guidance; however, notice and an opportunity for public comment are not required under 5 U.S.C. 553(b) or any other law. See Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336­37, 87 U.S.P.Q.2d 1705, 1710 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), does not require notice and comment rule making for “`interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.”’ (quoting 5 U.S.C. 553(b)(A))). Persons submitting written comments should note that the USPTO may not provide a “comment and response” analysis of such comments as notice and an opportunity for public comment are not required under 5 U.S.C. 553(b) or any other law.

Dated: July 4, 2010.

David J. Kappos,

Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.


(The END)

This note in the Federal register is followed by two other texts, which news.swpat.org has also posted text versions of:

Please comment at:

And, just to be complete, the very last thing in the Federal register is:

[FR Doc. 2010­18424 Filed 7­26­10; 8:45 am]
BILLING CODE 3510­16­P