Loopholes In The USPTO's Berkheimer Memo

Law360 (May 1, 2018, 11:52 AM EDT) -- Rejections of patent claims under 35 U.S.C. § 101 are often criticized when examiners take an "I know when I see it" approach rather than applying any objective standards for assessing patent eligibility. However, in an April 19, 2018, memorandum, the U.S. Patent and Trademark Office imposes new limitations on rejecting patent claims as ineligible for being directed to abstract ideas without significantly more. The memorandum provides guidance for complying with the Federal Circuit's evidentiary requirements for the "significantly more" step of the eligibility analysis, which the court articulated in its recent Berkheimer v. HP Inc.[1] decision. According to the USPTO's...

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