What is the evidentiary standard for subject matter eligibility rejections?

The evidentiary standard for subject matter eligibility rejections varies depending on the step of the analysis:

  • For Step 2A Prong One (identifying the judicial exception), no evidence is required
  • For Step 2A Prong Two and Step 2B, evidence is only required to support a finding that additional elements are well-understood, routine, conventional activities

MPEP 2106.07(a)(III) states: “At Step 2A Prong One, there is no requirement for evidence to support a finding that the exception is recited or described in the claim… At Step 2A Prong Two or Step 2B, there is no requirement for evidence to support a finding that the exception is not integrated into a practical application or that the additional elements do not amount to significantly more than the exception unless the examiner asserts that additional limitations are well-understood, routine, conventional activities in Step 2B.”

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Topics: MPEP 2100 - Patentability, MPEP 2106.07(A) - Formulating A Rejection For Lack Of Subject Matter Eligibility, Patent Law, Patent Procedure
Tags: 101 Rejection, Evidentiary Standard, Judicial Exception, subject matter eligibility, Well-Understood Routine Conventional