2019 Revised Patent Subject Matter Eligibility Guidance from United States Patent and Trademark Office


On December 20, 2018, the Director of the USPTO issued revised guidance for use by USPTO personnel in evaluating subject matter eligibility for patents. Public comment is invited.

Computer-related Patents

Perhaps the most concrete part of the revised guidance for applying the vague “judicial exception” test created by the Supreme Court’s 2014 Alice case is this: “a patent claim or patent application claim that recites a judicial exception is not ‘directed to’ the judicial exception if the judicial exception is integrated into a practical application of the judicial exception.” Got that?

More specifically, the revised guidance basically says that “abstract ideas” will be divided into groups (mathematical concepts, certain methods of organizing human activity, mental processes). {“Judicial exceptions” are abstract ideas, laws of nature and natural phenomena.} If the invention falls into an abstract idea group and is NOT integrated into a practical application, then further analysis is required (i.e., “Step 2B of the Alice/Mayo test” is needed (for example to determine whether the claim merely recites well understood, routine, conventional activity)).