On December 16, 2014, the USPTO issued a comprehensive interim Guidance document for examination of subject matter eligibility under 35 U.S.C. § 101. The new Guidance document supplements the June 2014 Preliminary Examination Instructions issued in view of Alice Corp. v. CLS Bank International (2014), and supersedes the March 2014 Procedure For Subject Matter Eligibility Analysis Of Claims Reciting Or Involving Laws Of Nature/Natural Principles, Natural Phenomena, And/Or Natural Products.

Two-step Analysis -

Under the new Guidance document, subject matter eligibility under 35 U.S.C. § 101 is determined using a two-step process. First, in Step 1, the examiner determines whether a claim is directed to statutory subject matter, i.e., a process, machine, manufacture or composition of matter. Second, in Step 2A, the examiner determines whether the claim is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea). If it is, then, in Step 2B, the examiner also determines whether the claim amounts to significantly more than a judicial exception. The test for determining whether a claim is directed to a judicial exception (Step 2A) is separate from the analysis of whether the claim includes “significantly more” than the exception (Step 2B). In contrast to the March 2014 Guidance document, the claim will be found patent eligible without further analysis if, under Step 2A, the examiner concludes the claim is not directed to a judicial exception.