What is “mere instructions to apply an exception” in patent claims?
“Mere instructions to apply an exception” is a concept in patent eligibility analysis that can render a claim ineligible. As explained in MPEP 2106.05(f):
“Another consideration when determining whether a claim integrates a judicial exception into a practical application in Step 2A Prong Two or recites significantly more than a judicial exception in Step 2B is whether the additional elements amount to more than a recitation of the words ‘apply it’ (or an equivalent) or are more than mere instructions to implement an abstract idea or other exception on a computer.”
The MPEP provides several considerations for determining if a claim is merely instructions to apply an exception:
- Whether the claim recites only the idea of a solution or outcome without reciting details of how it is accomplished
- Whether the claim invokes computers or other machinery merely as a tool to perform an existing process
- The particularity or generality of the application of the judicial exception
For example, a claim that simply states an abstract idea and adds the words “apply it on a computer” would likely be considered mere instructions to apply an exception.
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