Patent Law FAQ

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.“

To learn more:

• Non-statutory Subject Matter
• Patent Eligibility
• Data per se
• Software per se
• Signals per se
• Transitory Signals