Patentable Subject Matter - Legislations - United States

United States

Section 101 of Title 35 U.S.C. sets out the subject matter that can be patented:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

In October 2005, the United States Patent and Trademark Office (USPTO) issued interim guidelines for patent examiners to determine if a given claimed invention meets the statutory requirements of being a useful process, manufacture, composition of matter or machine (35 U.S.C. § 101). These guidelines assert that a process, including a process for doing business, must produce a concrete, useful and tangible result to be patentable. It does not matter whether the process is within the traditional technological arts or not. A price for a financial product, for example, is considered to be a concrete useful and tangible result (see State Street Bank v. Signature Financial Group). However, on August 24, 2009, the USPTO issued new interim guidelines so that examination would comport with the Federal Circuit opinion in In re Bilski, which held that the "useful, concrete, and tangible" test for patent-eligibility is incorrect and that State Street Bank v. Signature Financial Group is no longer valid legal authority on this point. Instead, the Federal Circuit and the new USPTO guidelines use a Machine-or-Transformation Test to determine patentability for processes. The Supreme Court determined that the claims in the Bilski case covered non-statutory subject matter as it was too abstract and broad.

The USPTO has reasserted its position that literary works, compositions of music, compilations of data, legal documents (such as insurance policies), and forms of energy (such as data packets transmitted over the Internet), are not considered "manufactures" and hence, by themselves, are not patentable. Nonetheless, the USPTO has requested comments from the public on this position. The Federal Circuit has ruled, in In re Nuijten, that signals are not statutory subject matter, because articles of manufacture (the only plausible category under 35 U.S.C. § 101) do not include intangible, incorporeal, transitory entities.

The USPTO was prompted to issue the guidelines by a recent decision by their board of appeals, Ex Parte Lundgren. This decision asserted that according to US judicial opinions, inventions do not have to be in the "technological arts" to satisfy the requirements of 35 U.S.C. § 101. They must, however, produce a concrete, useful and tangible result. As indicated above, however, In re Bilski supersedes that legal test (as to the "useful, concrete, and tangible" test). The Bilski majority opinion also rejects the "technological arts" test, although three Federal Circuit judges (Mayer, dissenting, and Dyk and Linn, concurring) stated that they considered being technological an indispensable condition of patent-eligibility.

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