ANALYSIS: Patent Subject-Matter Eligibility—A Widening Gap

New subject-matter eligibility guidance issued by the United States Patent and Trademark Office (USPTO) has complicated the question of what inventions qualify for patenting under 35 USC 101. The 2019 Revised Patent Subject Matter Eligibility Guidance, 84 FR 50 (2019 Guidance), is not binding on the federal courts that review patent decisions, and recent decisions by the U.S. Court of Appeals for the Federal Circuit show that application of the 2019 Guidance and judicial review can produce different outcomes.

The Statute and Its Interpretation

All patent applicants must establish that their inventions are eligible for a patent ...