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Subject matter eligibility

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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.

Examination guidance

The Office’s current eligibility guidance is found in the 2019 Revised Patent Subject Matter Eligibility Guidance (2019 PEG), October 2019 Patent Eligibility Guidance Update (October 2019 Update), and in Manual of Patent Examination Procedure (MPEP) Sections 2103, 2104, 2105, 2106 and 2106.03 through 2106.07(c) (except 2106.04(II) which is now superseded). The 2019 PEG supersedes MPEP section 2106.04(II) along with any other portion of the MPEP that conflicts with the 2019 PEG or October 2019 Update. This chart discusses the section of the MPEP that are affected by the 2019 PEG.

The 2019 PEG revises the procedures for determining whether a claim is directed to a judicial exception (Step 2A in the Office’s eligibility framework). The recently issued October 2019 Patent Eligibility Update (October 2019 Update) clarifies issues with respect to the 2019 PEG, particularly the groupings of abstract ideas enumerated in the 2019 PEG and the evaluation of whether a judicial exception is integrated into a practical application. The Berkheimer Memo revises the procedures for supporting a conclusion that an additional element (or combination of additional elements) represents well-understood, routine, conventional activity in Step 2B.

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