What are the key steps in the markedly different characteristics analysis?
The markedly different characteristics analysis is a crucial process in determining patent eligibility for nature-based products. According to MPEP 2106.04(c), the key steps in this analysis are:
- Identify the nature-based product limitation in the claim.
- Identify the closest naturally occurring counterpart to the claimed nature-based product.
- Compare the characteristics of the claimed nature-based product to its naturally occurring counterpart.
- Determine if there are markedly different characteristics between the claimed product and its natural counterpart.
The MPEP states:
“The markedly different characteristics analysis compares the nature-based product limitation to its naturally occurring counterpart in its natural state. When there is no naturally occurring counterpart to the nature-based product, the comparison should be made to the closest naturally occurring counterpart.”
If the analysis concludes that the claimed product has markedly different characteristics, it is not a “product of nature” exception and is eligible for patenting under 35 U.S.C. 101.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2106.04(C) - The Markedly Different Characteristics Analysis,
Patent Law,
Patent Procedure