What is the difference between ‘directed to’ a judicial exception and ‘reciting’ a judicial exception?
There is an important distinction between a claim ‘reciting’ a judicial exception and being ‘directed to’ a judicial exception in patent eligibility analysis:
- ‘Reciting’ a judicial exception means the claim sets forth or describes the exception.
- Being ‘directed to’ a judicial exception means the exception is not integrated into a practical application.
As stated in MPEP 2106.04: “A claim reciting a judicial exception is not directed to the judicial exception if it also recites additional elements demonstrating that the claim as a whole integrates the exception into a practical application.”
Examiners first determine if a claim recites a judicial exception in Step 2A Prong One. If it does, they then analyze in Step 2A Prong Two whether the claim is directed to that exception or if it integrates it into a practical application.
A claim can recite a judicial exception but not be directed to it if the exception is integrated into a practical application.
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