What is the basis for rejecting a claim under 35 U.S.C. 101 for lack of subject matter eligibility?
A rejection under 35 U.S.C. 101 for lack of subject matter eligibility must be based on failure to comply with the substantive law as interpreted by judicial precedent. The MPEP states:
“Eligibility rejections must be based on failure to comply with the substantive law under 35 U.S.C. 101 as interpreted by judicial precedent. The substantive law on eligibility is discussed in MPEP §§ 2106.03 through 2106.06.”
Examiners must review the record as a whole and evaluate eligibility on a claim-by-claim basis before reaching a conclusion about subject matter eligibility.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2106.07 - Formulating And Supporting Rejections For Lack Of Subject Matter Eligibility,
Patent Law,
Patent Procedure