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Sept 1 -- The United States Patent and Trademark Office (USPTO) is seeking public feedback on its existing patent subject matter eligibility guidance. The existing guidance, put in place in 2019, has contributed to more consistent examination. But there is more work to be done to impart clarity and certainty into patent eligibility. In addition to working with Congress on potential changes to the law and looking for opportunities in the courts, the USPTO is updating its guidance and has been seeking public input on the same. Given the overwhelming interest in the guidance, the USPTO will now accept feedback via the Federal eRulemaking Portal until October 15, 2022.

On July 25, 2022, the USPTO published a blog titled “Providing clear guidance on patent subject matter eligibility” at https://www.uspto.gov/blog/director/entry/providing-clear-guidance-on-patent. As noted in the blog, the 2019 revisions to the USPTO's eligibility guidance resulted in a 25% decrease in the likelihood of Alice-affected technologies receiving a first office action with a rejection for patent ineligible subject matter. See Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208 (2014). Uncertainty about determinations of patent subject matter eligibility for the relevant technologies also decreased by a remarkable 44% as compared to the previous year. Despite this progress to achieve more consistent examination under section 101, there is more work to be done. As part of its multi-pronged approach to imparting more clarity and certainty into patent eligibility, in addition to working with Congress and looking for opportunities in the courts, the USPTO is revising its subject matter eligibility guidance.

In the July 25 blog post, the USPTO initially encouraged the public to email thoughts or comments on the guidance specified in Manual of Patent Examining Procedure 2106 to a uspto.gov mailbox by September 15, 2022. However, given the overwhelming interest in this subject matter, the USPTO is extending the deadline, and the public may now submit feedback until the new deadline of October 15, 2022.
 
Our current guidance is in the Manual of Patent Examining Procedure 2106, which explains how patent examiners should evaluate claims for patent eligibility. https://www.uspto.gov/web/offices/pac/mpep/s2106.html
 
FRN: https://www.federalregister.gov/d/2022-18895

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