What is the procedure for identifying a ‘tentative abstract idea’?

The MPEP describes a procedure for identifying a ‘tentative abstract idea’ in rare circumstances where an examiner believes a claim limitation should be treated as an abstract idea, but it doesn’t fall within the established groupings. The process is as follows:

1. The examiner evaluates the claim under the subject matter eligibility framework.
2. If the claim integrates the tentative abstract idea into a practical application, it is eligible.
3. If not, the claim is analyzed at Step 2B to determine if it provides an inventive concept.
4. If the claim doesn’t provide an inventive concept, the application must be brought to the attention of the Technology Center (TC) director.

The MPEP states: “A rejection of a claim reciting a tentative abstract idea must be approved by the TC director (which approval will be indicated in the file record of the application) and must provide a justification for why such claim limitation is being treated as reciting an abstract idea.“

This procedure ensures that identifying new categories of abstract ideas undergoes careful scrutiny and approval, maintaining consistency in patent examination while allowing for the evolution of subject matter eligibility jurisprudence.

To learn more:

• tentative abstract idea
• patent eligibility
• subject matter eligibility
• patent examination procedure