How does an examiner determine if an element is well-understood, routine, conventional activity?

According to MPEP 2106.05(d), an examiner should determine that an element is well-understood, routine, conventional activity only when they can readily conclude, based on their expertise in the art, that the element is widely prevalent or in common use in the relevant industry. The MPEP states:

“As such, an examiner should determine that an element (or combination of elements) is well-understood, routine, conventional activity only when the examiner can readily conclude, based on their expertise in the art, that the element is widely prevalent or in common use in the relevant industry.”

The MPEP provides four ways to support this determination:

1. A citation to an express statement in the specification or during prosecution.
2. A citation to one or more court decisions.
3. A citation to a publication demonstrating the well-understood, routine, conventional nature of the element.
4. A statement of official notice.

It’s important to note that this determination is separate from novelty or obviousness considerations.

To learn more:

• patent examination
• conventional activity
• Step 2B analysis