PTO Extends Public Comment Period on Patent Subject Matter Eligibility Guidance

The US Patent & Trademark Office (PTO) seeks public feedback on its existing patent subject matter eligibility (SME) guidance. The guidance was put in place in 2019. As noted in the PTO’s July 25, 2022, blog post, the 2019 revisions to the SME guidance resulted in a large decrease in 35 U.S.C. § 101 rejections. However, the PTO believes that greater consistency can be achieved in patent examination in view of the statutory language of § 101 and the Supreme Court’s 2014 decision in Alice Corp. Pty. Ltd. v. CLS Bank Int’l. The PTO’s goal is to impart clarity and certainty into patent eligibility. In addition to working with Congress on potential changes to the law and looking for opportunities in the courts, the PTO is updating its SME guidance and requests public input. In its July 25 blog post, the PTO requested that comments be submitted by September 15, 2022. In response to overwhelming interest, however, the PTO will now accept feedback via the Federal eRulemaking Portal until October 15, 2022.