What are the key steps in the markedly different characteristics analysis?
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.
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.