A More Consistent USPTO Approach To Patent Eligibility

Subject matter eligibility in the United States has recently become a key issue in patent law that has impacted a wide range of technologies in both the life sciences and technology industries. Despite the increased importance of eligibility, there remains a great deal of uncertainty and confusion surrounding the tests that have been implemented by the courts and the U.S. Patent and Trademark Office to assess eligibility.

Following the U.S. Supreme Court's Mayo and Alice decisions, the USPTO adopted a divergent eligibility analysis framework as it relates to particular forms of subject matter. In particular, one key distinction that exists within that eligibility framework is an apparent "detour route" only available to products of nature — which, not surprisingly, skews heavily to the life sciences industry and is largely irrelevant to the technology industry. This "detour route" involves initially assessing whether a composition claim is "directed to" a product of