This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.
According to the MPEP, non-limiting examples of claims that are not directed to any of the statutory categories include:
- Products that do not have a physical or tangible form, such as information (often referred to as “data per se”) or a computer program per se (often referred to as “software per se”) when claimed as a product without any structural recitations
- Transitory forms of signal transmission (often referred to as “signals per se”), such as a propagating electrical or electromagnetic signal or carrier wave
- Subject matter that the statute expressly prohibits from being patented, such as humans per se, which are excluded under The Leahy-Smith America Invents Act (AIA)
The MPEP further clarifies: “Even when a product has a physical or tangible form, it may not fall within a statutory category. For instance, a transitory signal, while physical and real, does not possess concrete structure that would qualify as a device or part under the definition of a machine, is not a tangible article or commodity under the definition of a manufacture, and is not composed of matter such that it would qualify as a composition of matter.“