What is considered “well-understood, routine, conventional activity” in patent claims?
“Well-understood, routine, conventional activity” is a key concept in patent eligibility analysis. As explained in MPEP 2106.05(d):
“A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity.”
The MPEP provides several ways an examiner can support such a conclusion:
- A citation to an express statement in the specification or during prosecution
- A citation to one or more court decisions
- A citation to a publication demonstrating the well-understood, routine, conventional nature of the additional element(s)
- A statement that the examiner is taking official notice
It’s important to note that just because something is disclosed in a piece of prior art does not mean it is well-understood, routine, and conventional. The MPEP states: “The question of whether a particular claimed invention is novel or obvious is ‘fully apart’ from the question of whether it is eligible.”
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2106.05 - Eligibility Step 2B: Whether A Claim Amounts To Significantly More,
Patent Law,
Patent Procedure