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ARTICLE · 24 MAY 2016

USPTO 101 Guidance: Microneedles Versus Prosthetic Devices

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Whether these differences are accidental or intentional, they reflect the inherent difficulty of applying current patent eligibility paradigms to specific claims.

United StatesIntellectual Property
Courtenay Brinckerhoff
Courtenay Brinckerhoff
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When I first wrote about the new natural products Subject Matter Eligibility Examples issued by the USPTO on May 4, 2016, I noted a puzzling difference between the treatment of a claim reciting a vaccine coated on a microneedle device versus a claim reciting a vaccine formulated in a cream carrier. Suzannah Sundby at Canady + Lortz LLP has pointed out another inconsistency: the USPTO’s treatment of a prosthetic device coated with a naturally-occurring mineral. Whether these differences are accidental or intentional, they reflect the inherent difficulty of applying current patent eligibility paradigms to specific claims.

Prosthetic Device—Eligible Under Streamlined Analysis

The December 16, 2014 Federal Register Notice explaining the USPTO’s 2014 Interim Guidance on Patent Subject Matter Eligibility included the following guidance:

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