The USPTO recently released revised guidelines to assist examiners in making patent subject matter eligibility determinations under the Alice/Mayo test. The official notice of the 2019 Revised Patent Subject Matter Eligibility Guidance may be found at https://www.govinfo.gov/content/pkg/FR-2019-01-07/pdf/2018-28282.pdf.
This revised guidance includes some important changes that may increase the likelihood of patentable subject matter, particularly in the software arts. For example, when determining whether a claim is “directed to” an “abstract idea” under the Alice/Mayo test, the guidance identifies three groups of abstract ideas: mathematical concepts, methods of organizing human activity, and mental processes. If the claim does not recite matter within one of these three groups, it is unlikely to cover an abstract idea, and therefore likely includes patentable subject matter.
It will take some time to see the practical effects of this guidance, but does offer some hope to those struggling with subject matter eligibility rejections before the USPTO.
