Software and Business Methods in the US: Updated Guidelines for Determining Patentability

In the US, the law is in a state of flux in relation to precisely what constitutes patentable subject matter, particularly in terms of business methods, software, and the like. Users of the patent system find themselves caught in an uncomfortable fix between a controversial Federal Court decision, and what is expected to be a landmark Supreme Court judgement sometime next year. In an attempt to create stability during this unusual period, the USPTO has issued a new set of guidelines to Examiners. The news is generally positive for patent applicants.

Overview of the Guidelines

The crux of the guidelines is a two-stage process for assessing whether or not a patent claim defines subject matter eligible for patenting. Firstly, Examiners are to check that a claim falls neatly into one of the four defined categories of eligible subject matter, being: processes, machines, manufacture, or compositions of matter. Secondly, assuming the first step is satisfied, the Examiners