Patent eligibility in the United States is statutorily defined by 35 U.S.C. 101. This section of the law outlines the basic criteria, and defines the four categories of invention—process, machine, manufacture, or composition of matter—that Congress deemed to be the appropriate subject matter of a patent. The U.S. Supreme Court (Court) long ago carved out certain exceptions to patent eligibility for abstract ideas, laws of nature, and natural phenomena. More recent Court decisions have interpreted the provisions of that law, specifically by articulating a two-step test to distinguish eligible subject matter from subject matter that falls within one of the exceptions. In the face of emerging technologies and as legal standards continue to evolve, the United States Patent and Trademark Office (USPTO) engages with its stakeholders, Congress, and the public regarding various policy aspects of current issues related to patent subject matter eligibility.
2022 Report to Congress
Patent eligible subject matter: Public views on the current jurisprudence in the United States
In 2021, the USPTO published a Federal Register Notice seeking comments from the public regarding the current state of patent eligibility jurisprudence in the United States since the Supreme Court’s 2016 decisions in Mayo and Alice and subsequent Federal Circuit decisions applying the Supreme Court’s legal framework. The responses are the basis of this report to Congress on how current jurisprudence may affect U.S. investment and innovation, particularly in critical technologies such as quantum computing, artificial intelligence, precision medicine, diagnostic methods, and pharmaceutical treatments.
Read the report. If you have questions or concerns regarding this report, please contact 101@uspto.gov.
Public comments submitted in response to the 2021 Federal Register Notice
On July 9, 2021, the USPTO published a Federal Register Notice seeking comments from the public regarding the current state of patent eligibility jurisprudence in the United States. The responses are listed here, by subcategory of respondent.
Report: Adjusting to Alice
A report, Adjusting to Alice: USPTO patent examination outcomes after Alice Corp. v. CLS Bank International, was published by the USPTO in April 2020. Based on analysis by the USPTO’s Office of the Chief Economist, it highlights how actions undertaken by the USPTO subsequent to the release of the 2019 Revised Patent Subject Matter Eligibility Guidance brought greater predictability and certainty to the determination of patent eligibility in the technology areas most affected by the U.S. Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank International.
2016 public roundtable on patent subject matter eligibility
On December 5, 2016, a public roundtable —“Roundtable 2: Exploring the Legal Contours of Patent Subject Matter Eligibility”—was conducted by the USPTO at Stanford University. Read the report and participant presentations.
USPTO patent subject eligibility guidance
The USPTO’s subject matter eligibility guidance explains how USPTO personnel, including patent examiners, should evaluate claims for patent subject matter eligibility under 35 U.S.C. 101.
