MPEP Q & A 169: Non-Limiting Claims Not Directed to Any of the Statutory Categories.

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Question:

Provide an example of a non-limiting claim that is not directed to any of the statutory categories.

Answer:

Examples of a non-limiting claim that is not directed to any of the statutory categories include;

  • Products that do not have a physical or tangible form, such as information (often referred to as “data per se”) or a computer program per se (often referred to as “software per se”) when claimed as a product without any structural recitations;
  • Transitory forms of signal transmission (often referred to as “signals per se”), such as a propagating electrical or electromagnetic signal or carrier wave; and
  • Subject matter that the statute expressly prohibits from being patented, such as humans per se, which are excluded under The Leahy-Smith America Invents Act (AIA).

Chapter Details:

The answer to this question can be found in chapter 2100 of the MPEP. This chapter covers patentability.

The answer is from the 9th Edition, Revision 08.2017. Depending on future changes to the MPEP, the question and answer may or may not be applicable in later Editions or revisions.

Section Summary:

This question and answer comes from section 2106.03 of the MPEP.  The following is a brief summary of section 2106.03.

2106.03 Eligibility Step 1: The Four Categories of Statutory Subject Matter 

The four categories of statutory subject matter are; processes, machines, manufactures, and compositions of matter. This section covers each of the categories along with details on how to determine whether a claim fits in a statutory category.