MPEP § 2106 — MPEP § 2106
Current through: 2022-07-01

2106-Patent Subject Matter Eligibility 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2100 

 Section 2106 
 

 
 
 
 
 
 2106 Patent Subject Matter Eligibility [R-10.2019]
 I. TWO CRITERIA FOR SUBJECT MATTER ELIGIBILITY First, the claimed invention must be to one of the four
 statutory categories. 35 U.S.C. 101 defines the four categories of invention that
 Congress deemed to be the appropriate subject matter of a patent: processes, machines,
 manufactures and compositions of matter. The latter three categories define “things” or
 “products” while the first category defines “actions” (i.e., inventions that consist of
 a series of steps or acts to be performed). See 35 U.S.C. 100(b) (“The term
 ‘process’ means process, art, or method, and includes a new use of a known process,
 machine, manufacture, composition of matter, or material.”). See MPEP §
 2106.03 for detailed information on the four categories.
 

 Second, the claimed invention also must qualify as
 patent-eligible subject matter, i.e., the claim must not be directed to a judicial
 exception unless the claim as a whole includes additional limitations amounting to
 significantly more than the exception. The judicial exceptions (also called “judicially
 recognized exceptions” or simply “exceptions”) are subject matter that the courts have
 found to be outside of, or exceptions to, the four statutory categories of invention,
 and are limited to abstract ideas, laws of nature and natural phenomena (including
 products of nature). Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573
 U.S. 208, 216, 110 USPQ2d 1976, 1980 (2014) (citing Ass'n for Molecular
 Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589, 106 USPQ2d 1972,
 1979 (2013). See MPEP § 2106.04 for detailed information
 on the judicial exceptions.
 

 Because abstract ideas, laws of nature, and natural
 phenomenon "are the basic tools of scientific and technological work", the Supreme Court
 has expressed concern that monopolizing these tools by granting patent rights may impede
 innovation rather than promote it. See Alice Corp., 573 U.S. at 216,
 110 USPQ2d at 1980; Mayo Collaborative Servs. v. Prometheus Labs.,
 Inc., 566 U.S. 66, 71, 101 USPQ2d 1961, 1965 (2012). However, the Court has
 also emphasized that an invention is not considered to be ineligible for patenting
 simply because it involves a judicial exception. Alice Corp., 573
 U.S. at 217, 110 USPQ2d at 1980-81 (citing Diamond v. Diehr, 450 U.S.
 175, 187, 209 USPQ 1, 8 (1981)). See also Thales Visionix Inc. v. United
 States, 850 F.3d. 1343, 1349, 121 USPQ2d 1898, 1902 (Fed. Cir. 2017) (“That
 a mathematical equation is required to complete the claimed method and system does not
 doom the claims to abstraction.”). Accordingly, the Court has said that integration of
 an abstract idea, law of nature or natural phenomenon into a practical application may
 be eligible for patent protection. See, e.g., Alice, 573 U.S. at 217,
 110 USPQ2d at 1981 (explaining that “in applying the §101 exception, we must distinguish
 between patents that claim the ‘buildin[g] block[s]’ of human ingenuity and those that
 integrate the building blocks into something more” (quoting Mayo, 566
 U.S. at 89, 110 USPQ2d at 1971) and stating that Mayo “set forth a
 framework for distinguishing patents that claim laws of nature, natural phenomena, and
 abstract ideas from those that claim patent-eligible applications of those concepts”);
 Mayo, 566 U.S. at 80, 84, 101 USPQ2d at 1969, 1971 (noting that
 the Court in Diamond v. Diehr found “the overall process patent
 eligible because of the way the additional steps of the process integrated the equation
 into the process as a whole,” but the Court in Gottschalk v. Benson 
 “held that simply implementing a mathematical principle on a physical machine, namely a
 computer, was not a patentable application of that principle”); Bilski v.
 Kappos, 561 U.S. 593, 611, 95 USPQ2d 1001, 1010 (2010)
 (“ Diehr explained that while an abstract idea, law of nature, or
 mathematical formula could not be patented, ‘an application of a law of nature or
 mathematical formula to a known structure or process may well be deserving of patent
 protection.’” (quoting Diamond v. Diehr, 450 U.S. 175, 187, 209 USPQ
 1, 8 (1981)) (emphasis in original)); Diehr, 450 U.S. at 187, 192
 n.14, 209 USPQ at 10 n.14 (explaining that the process in Parker v.
 Flook was ineligible not because it contained a mathematical formula, but
 because it did not provide an application of the formula). See Diamond v.
 Diehr, 450 U.S. 175, 209 USPQ 1 (1981); Gottschalk v.
 Benson, 409 U.S. 63, 175 USPQ 673 (1972); Parker v.
 Flook, 437 U.S. 584, 198 USPQ 193 (1978).
 

 The Supreme Court in Mayo laid out a
 framework for determining whether an applicant is seeking to patent a judicial exception
 itself, or a patent-eligible application of the judicial exception. See Alice
 Corp., 573 U.S. at 217-18, 110 USPQ2d at 1981 (citing
 Mayo , 566 U.S. 66, 101 USPQ2d 1961). This framework, which is
 referred to as the Mayo test or the Alice/Mayo 
 test, is discussed in further detail in subsection III, below. The first part of the
 Mayo test is to determine whether the claims are directed to an
 abstract idea, a law of nature or a natural phenomenon (i.e., a judicial exception).
 Id. If the claims are directed to a judicial exception, the second
 part of the Mayo test is to determine whether the claim recites
 additional elements that amount to significantly more than the judicial exception.
 Id. citing Mayo, 566 U.S. at 72-73, 101 USPQ2d
 at 1966). The Supreme Court has described the second part of the test as the "search for
 an 'inventive concept'". Alice Corp., 573 U.S. at 217-18, 110 USPQ2d
 at 1981 (citing Mayo , 566 U.S. at 72-73, 101 USPQ2d at 1966). 
 

 The Alice/Mayo two-part test is the
 only test that should be used to evaluate the eligibility of claims under examination.
 While the machine-or-transformation test is an important clue to eligibility, it should
 not be used as a separate test for eligibility. Instead it should be considered as part
 of the "integration" determination or "significantly more" determination articulated in
 the Alice/Mayo test. Bilski v. Kappos, 561 U.S.
 593, 605, 95 USPQ2d 1001, 1007 (2010). See MPEP §
 2106.04(d) for more information about evaluating whether a
 claim reciting a judicial exception is integrated into a practical application and
 MPEP §
 2106.05(b) and MPEP §
 2106.05(c) for more information about how the
 machine-or-transformation test fits into the Alice/Mayo two-part
 framework. Likewise, eligibility should not be evaluated based on whether the claim
 recites a "useful, concrete, and tangible result," State Street Bank ,
 149 F.3d 1368, 1374, 47 USPQ2d 1596, 1602 (Fed. Cir. 1998) (quoting In re
 Alappat, 33 F.3d 1526, 1544, 31 USPQ2d 1545, 1557 (Fed. Cir. 1994)), as
 this test has been superseded. In re Bilski, 545 F.3d 943, 959-60, 88
 USPQ2d 1385, 1394-95 (Fed. Cir. 2008) ( en banc ), aff'd by
 Bilski v. Kappos, 561 U.S. 593, 95 USPQ2d 1001 (2010). See also
 TLI Communications LLC v. AV Automotive LLC, 823 F.3d 607, 613,
 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (“It is well-settled that mere recitation of
 concrete, tangible components is insufficient to confer patent eligibility to an
 otherwise abstract idea”). The programmed computer or “special purpose computer” test of
 In re Alappat , 33 F.3d 1526, 31 USPQ2d 1545 (Fed. Cir. 1994)
 ( i.e. , the rationale that an otherwise ineligible algorithm or
 software could be made patent-eligible by merely adding a generic computer to the claim
 for the “special purpose” of executing the algorithm or software) was also superseded by
 the Supreme Court’s Bilski and Alice Corp. 
 decisions. Eon Corp. IP Holdings LLC v. AT&T Mobility LLC, 785
 F.3d 616, 623, 114 USPQ2d 1711, 1715 (Fed. Cir. 2015) (“[W]e note that
 Alappat has been superseded by Bilski, 561 U.S.
 at 605–06, and Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 110
 USPQ2d 1976 (2014)”); Intellectual Ventures I LLC v. Capital One Bank (USA),
 N.A., 792 F.3d 1363, 1366, 115 USPQ2d 1636, 1639 (Fed. Cir. 2015) (“An
 abstract idea does not become nonabstract by limiting the invention to a particular
 field of use or technological environment, such as the Internet [or] a computer”).
 Lastly, eligibility should not be evaluated based on whether the claimed invention has
 utility, because “[u]tility is not the test for patent-eligible subject matter.”
 Genetic Techs. Ltd. v. Merial LLC, 818 F.3d 1369, 1380, 118 USPQ2d
 1541, 1548 (Fed. Cir. 2016).
 

 Examiners are reminded that 35 U.S.C. 101 is
 not the sole tool for determining patentability; 35 U.S.C. 112 , 35 U.S.C. 102 , and
 35 U.S.C.
 103 will provide additional tools for ensuring that the claim
 meets the conditions for patentability. As the Supreme Court made clear in
 Bilski, 561 U.S. at 602, 95 USPQ2d at 1006:
 

 
 The § 101 patent-eligibility inquiry
 is only a threshold test. Even if an invention qualifies as a process, machine,
 manufacture, or composition of matter, in order to receive the Patent Act’s
 protection the claimed invention must also satisfy ‘‘the conditions and requirements
 of this title.’’ §
 101 . Those requirements include that the invention be novel,
 see §
 102 , nonobvious, see § 103 , and fully and particularly
 described, see §
 112 . 
 

 II. ESTABLISH BROADEST REASONABLE INTERPRETATION OF CLAIM AS A WHOLE It is essential that the broadest reasonable interpretation
 (BRI) of the claim be established prior to examining a claim for eligibility. The BRI
 sets the boundaries of the coverage sought by the claim and will influence whether the
 claim seeks to cover subject matter that is beyond the four statutory categories or
 encompasses subject matter that falls within the exceptions. See MyMail, Ltd.
 v. ooVoo, LLC, 934 F.3d 1373, 1379, 2019 USPQ2d 305789 (Fed. Cir. 2019)
 (“Determining patent eligibility requires a full understanding of the basic character of
 the claimed subject matter”), citing Bancorp Servs., LLC v. Sun Life Assurance
 Co. of Can. (U.S.), 687 F.3d 1266, 1273-74, 103 USPQ2d 1425, 1430 (Fed.
 Cir. 2012); In re Bilski, 545 F.3d 943, 951, 88 USPQ2d 1385, 1388
 (Fed. Cir. 2008) ( en banc ), aff'd by Bilski v.
 Kappos, 561 U.S. 593, 95 USPQ2d 1001 (2010) (“claim construction … is an
 important first step in a § 101 analysis”). Evaluating
 eligibility based on the BRI also ensures that patent eligibility under
 35 U.S.C.
 101 does not depend simply on the draftsman’s art.
 Alice, 573 U.S. 208, 224, 110 USPQ2d at 1984, 1985 (citing
 Parker v. Flook, 437 U.S. 584, 593, 198 USPQ 193, 198 (1978) and
 Mayo, 566 U.S. at 72, 101 USPQ2d at 1966). See
 MPEP §
 2111 for more information about determining the BRI.
 

 Claim interpretation affects the evaluation of both
 criteria for eligibility. For example, in Mentor Graphics v. EVE-USA,
 Inc., 851 F.3d 1275, 112 USPQ2d 1120 (Fed. Cir. 2017), claim interpretation
 was crucial to the court’s determination that claims to a “machine-readable medium” were
 not to a statutory category. In Mentor Graphics, the court
 interpreted the claims in light of the specification, which expressly defined the medium
 as encompassing “any data storage device” including random-access memory and carrier
 waves. Although random-access memory and magnetic tape are statutory media, carrier
 waves are not because they are signals similar to the transitory, propagating signals
 held to be non-statutory in Nuijten . 851 F.3d at 1294, 112 USPQ2d at
 1133 (citing In re Nuijten, 500 F.3d 1346, 84 USPQ2d 1495 (Fed. Cir.
 2007)). Accordingly, because the BRI of the claims covered both subject matter that
 falls within a statutory category (the random-access memory), as well as subject matter
 that does not (the carrier waves), the claims as a whole were not to a statutory
 category and thus failed the first criterion for eligibility.
 

 With regard to the second criterion for eligibility, the
 Alice/Mayo test, claim interpretation can affect the first part of
 the test (whether the claims are directed to a judicial exception). For example, the
 patentee in Synopsys argued that the claimed methods of logic circuit
 design were intended to be used in conjunction with computer-based design tools, and
 were thus not mental processes. Synopsys, Inc. v. Mentor Graphics
 Corp., 839 F.3d 1138, 1147-49, 120 USPQ2d 1473, 1480-81 (Fed. Cir. 2016).
 The court disagreed, because it interpreted the claims as encompassing nothing other
 than pure mental steps (and thus falling within an abstract idea grouping) because the
 claims did not include any limitations requiring computer implementation. In contrast,
 the patentee in Enfish argued that its claimed self-referential table
 for a computer database was an improvement in an existing technology and thus not
 directed to an abstract idea. Enfish, LLC v. Microsoft Corp., 822
 F.3d 1327, 1336-37, 118 USPQ2d 1684, 1689-90 (Fed. Cir. 2016). The court agreed with the
 patentee, based on its interpretation of the claimed “means for configuring” under
 35 U.S.C.
 112(f) as requiring a four-step algorithm that achieved the
 improvements, as opposed to merely any form of storing tabular data. See also
 McRO, Inc. v. Bandai Namco Games America, Inc. 837 F.3d 1299,
 1314, 120 USPQ2d 1091, 1102 (Fed. Cir. 2016) (the claim’s construction incorporated
 rules of a particular type that improved an existing technological process). Claim
 interpretation can also affect the second part of the Alice/Mayo test
 (whether the claim recites additional elements that amount to significantly more than
 the judicial exception). For example, in Amdocs (Israel) Ltd. v. Openet
 Telecom, Inc., where the court relied on the construction of the term
 “enhance” (to require application of a number of field enhancements in a distributed
 fashion) to determine that the claim entails an unconventional technical solution to a
 technological problem. 841 F.3d 1288, 1300-01, 120 USPQ2d 1527, 1537 (Fed. Cir. 2016).
 
 

 III. SUMMARY OF ANALYSIS AND FLOWCHART Examiners should determine whether a claim satisfies the
 criteria for subject matter eligibility by evaluating the claim in accordance with the
 following flowchart. The flowchart illustrates the steps of the subject matter
 eligibility analysis for products and processes that are to be used during examination
 for evaluating whether a claim is drawn to patent-eligible subject matter. It is
 recognized that under the controlling legal precedent there may be variations in the
 precise contours of the analysis for subject matter eligibility that will still achieve
 the same end result. The analysis set forth herein promotes examination efficiency and
 consistency across all technologies. 
 

 As shown in the flowchart, Step 1 relates to the
 statutory categories and ensures that the first criterion is met by confirming that the
 claim falls within one of the four statutory categories of invention. See
 MPEP §
 2106.03 for more information on Step 1. Step 2, which is the
 Supreme Court’s Alice/Mayo test, is a two-part test to identify
 claims that are directed to a judicial exception (Step 2A) and to then evaluate if
 additional elements of the claim provide an inventive concept (Step 2B) (also called
 "significantly more" than the recited judicial exception). See MPEP §
 2106.04 for more information on Step 2A and
 MPEP §
 2106.05 for more information on Step 2B. 
 

 The flowchart also shows three pathways (A, B, and C) to
 eligibility:
 

 
 Pathway A: Claims taken as a whole that fall within
 a statutory category (Step 1: YES) and, which may or may not recite a judicial
 exception, but whose eligibility is self-evident can be found eligible at Pathway
 A using a streamlined analysis. See MPEP §
 2106.06 for more information on this pathway and on
 self-evident eligibility. 
 

 Pathway B: Claims taken as a whole that fall within
 a statutory category (Step 1: YES) and are not directed to a judicial exception
 (Step 2A: NO) are eligible at Pathway B. These claims do not need to go to Step
 2B. See MPEP § 2106.04 for more
 information about this pathway and Step 2A.
 

 Pathway C: Claims taken as a whole that fall
 within a statutory category (Step 1: YES), are directed to a judicial exception
 (Step 2A: YES), and recite additional elements either individually or in an
 ordered combination that amount to significantly more than the judicial exception
 (Step 2B: YES) are eligible at Pathway C. See MPEP §
 2106.05 for more information about this pathway and Step
 2B. 
 

 
 Claims that could have been found eligible at Pathway A
 (streamlined analysis), but are subjected to further analysis at Steps 2A or Step 2B,
 will ultimately be found eligible at Pathways B or C. Thus, if the examiner is uncertain
 about whether a streamlined analysis is appropriate, the examiner is encouraged to
 conduct a full eligibility analysis. However, if the claim is not found eligible at any
 of Pathways A, B or C, the claim is patent ineligible and should be rejected under
 35 U.S.C.
 101 .
 

 Regardless of whether a rejection under 35 U.S.C. 101 is
 made, a complete examination should be made for every claim under each of the other
 patentability requirements: 35 U.S.C. 102 , 103 ,
 112 , and 101 (utility, inventorship and
 double patenting) and non-statutory double patenting. MPEP §
 2103 .
 

 

 
 2106.01 [Reserved]

 

 
 2106.02 [Reserved]

 

 
 2106.03 Eligibility Step 1: The Four Categories of
 Statutory Subject Matter [R-07.2022]
 
 I. THE FOUR
 CATEGORIES 35 U.S.C. 101 enumerates four
 categories of subject matter that Congress deemed to be appropriate subject matter
 for a patent: processes, machines, manufactures and compositions of matter. As
 explained by the courts, these “four categories together describe the exclusive reach
 of patentable subject matter. If a claim covers material not found in any of the four
 statutory categories, that claim falls outside the plainly expressed scope of
 §
 101 even if the subject matter is otherwise new and useful.”
 In re Nuijten, 500 F.3d 1346, 1354, 84 USPQ2d 1495, 1500 (Fed.
 Cir. 2007).
 

 A process defines “actions”, i.e., 
 an invention that is claimed as an act or step, or a series of acts or steps. As
 explained by the Supreme Court, a “process” is “a mode of treatment of certain
 materials to produce a given result. It is an act, or a series of
 acts, performed upon the subject-matter to be transformed and reduced to
 a different state or thing.” Gottschalk v. Benson, 409 U.S. 63,
 70, 175 USPQ 673, 676 (1972) (italics added) (quoting Cochrane v.
 Deener, 94 U.S. 780, 788, 24 L. Ed. 139, 141 (1876)). See also
 Nuijten, 500 F.3d at 1355, 84 USPQ2d at 1501 (“The Supreme
 Court and this court have consistently interpreted the statutory term ‘process’ to
 require action”); NTP, Inc. v. Research in Motion, Ltd., 418 F.3d
 1282, 1316, 75 USPQ2d 1763, 1791 (Fed. Cir. 2005) (“[A] process is a series of
 acts.”) (quoting Minton v. Natl. Ass’n. of Securities Dealers, 336
 F.3d 1373, 1378, 67 USPQ2d 1614, 1681 (Fed. Cir. 2003)). As defined in
 35 U.S.C.
 100(b) , the term “process” is synonymous with “method.”
 

 The other three categories (machines, manufactures
 and compositions of matter) define the types of physical or tangible “things” or
 “products” that Congress deemed appropriate to patent. Digitech Image Techs.
 v. Electronics for Imaging, 758 F.3d 1344, 1348, 111 USPQ2d 1717, 1719
 (Fed. Cir. 2014) (“For all categories except process claims, the eligible subject
 matter must exist in some physical or tangible form.”). Thus, when determining
 whether a claimed invention falls within one of these three categories, examiners
 should verify that the invention is to at least one of the following categories
 and is claimed in a physical or tangible form.
 

 
 • A machine is a “concrete thing, consisting of
 parts, or of certain devices and combination of devices.”
 Digitech, 758 F.3d at 1348-49, 111 USPQ2d at 1719
 (quoting Burr v. Duryee, 68 U.S. 531, 570, 17 L. Ed. 650,
 657 (1863)). This category “includes every mechanical device or combination of
 mechanical powers and devices to perform some function and produce a certain
 effect or result.” Nuijten, 500 F.3d at 1355, 84 USPQ2d at
 1501 (quoting Corning v. Burden, 56 U.S. 252, 267, 14 L. Ed.
 683, 690 (1854)). 
 

 • A manufacture is “a tangible article that is
 given a new form, quality, property, or combination through man-made or
 artificial means.” Digitech, 758 F.3d at 1349, 111 USPQ2d at
 1719-20 (citing Diamond v. Chakrabarty, 447 U.S. 303, 308,
 206 USPQ 193, 197 (1980)). As the courts have explained, manufactures are
 articles that result from the process of manufacturing,
 i.e., they were produced “from raw or prepared materials
 by giving to these materials new forms, qualities, properties, or combinations,
 whether by hand-labor or by machinery.” Samsung Electronics Co. v.
 Apple Inc., 137 S. Ct. 429, 120 USPQ2d 1749, 1752-3 (2016)
 (quoting Diamond v. Chakrabarty, 447 U. S. 303, 308, 206
 USPQ 193, 196-97 (1980)); Nuijten, 500 F.3d at 1356-57, 84
 USPQ2d at 1502. Manufactures also include “the parts of a machine considered
 separately from the machine itself.” Samsung Electronics, 
 137 S. Ct. at 435, 120 USPQ2d at 1753 (quoting 1 W. Robinson, The Law of
 Patents for Useful Inventions §183, p. 270 (1890)).
 

 • A composition of matter is a “combination of
 two or more substances and includes all composite articles.”
 Digitech, 758 F.3d at 1348-49, 111 USPQ2d at 1719
 (citation omitted). This category includes all compositions of two or more
 substances and all composite articles, “'whether they be the results of
 chemical union or of mechanical mixture, or whether they be gases, fluids,
 powders or solids.'” Chakrabarty, 447 U.S. at 308, 206 USPQ
 at 197 (quoting Shell Dev. Co. v. Watson, 149 F. Supp. 279,
 280 (D.D.C. 1957); id. at 310 holding genetically modified
 microorganism to be a manufacture or composition of matter).
 

 
 It is not necessary to identify a single category into
 which a claim falls, so long as it is clear that the claim falls into at least one
 category. For example, because a microprocessor is generally understood to be a
 manufacture, a product claim to the microprocessor or a system comprising the
 microprocessor satisfies Step 1 regardless of whether the claim falls within any
 other statutory category (such as a machine). It is also not necessary to identify a
 “correct” category into which the claim falls, because although in many instances it
 is clear within which category a claimed invention falls, a claim may satisfy the
 requirements of more than one category. For example, a bicycle satisfies both the
 machine and manufacture categories, because it is a tangible product that is concrete
 and consists of parts such as a frame and wheels (thus satisfying the machine
 category), and it is an article that was produced from raw materials such as aluminum
 ore and liquid rubber by giving them a new form (thus satisfying the manufacture
 category). Similarly, a genetically modified bacterium satisfies both the composition
 of matter and manufacture categories, because it is a tangible product that is a
 combination of two or more substances such as proteins, carbohydrates and other
 chemicals (thus satisfying the composition of matter category), and it is an article
 that was genetically modified by humans to have new properties such as the ability to
 digest multiple types of hydrocarbons (thus satisfying the manufacture category). 
 

 Non-limiting examples of claims that are 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), Public Law 112-29, sec. 33, 125
 Stat. 284 (September 16, 2011).
 

 
 As the courts' definitions of machines, manufactures
 and compositions of matter indicate, a product must have a physical or tangible form
 in order to fall within one of these statutory categories.
 Digitech, 758 F.3d at 1348, 111 USPQ2d at 1719. Thus, the
 Federal Circuit has held that a product claim to an intangible collection of
 information, even if created by human effort, does not fall within any statutory
 category. Digitech, 758 F.3d at 1350, 111 USPQ2d at 1720 (claimed
 “device profile” comprising two sets of data did not meet any of the categories
 because it was neither a process nor a tangible product). Similarly, software
 expressed as code or a set of instructions detached from any medium is an idea
 without physical embodiment. See Microsoft Corp. v. AT&T
 Corp., 550 U.S. 437, 449, 82 USPQ2d 1400, 1407 (2007); see also
 Benson, 409 U.S. 67, 175 USPQ2d 675 (An "idea" is not patent
 eligible). Thus, a product claim to a software program that does not also contain at
 least one structural limitation (such as a “means plus function” limitation) has no
 physical or tangible form, and thus does not fall within any statutory category.
 Another example of an intangible product that does not fall within a statutory
 category is a paradigm or business model for a marketing company. In re
 Ferguson, 558 F.3d 1359, 1364, 90 USPQ2d 1035, 1039-40 (Fed. Cir. 2009). 
 

 Even when a product has a physical or tangible form,
 it may not fall within a statutory category. For instance, a transitory signal, while
 physical and real, does not possess concrete structure that would qualify as a device
 or part under the definition of a machine, is not a tangible article or commodity
 under the definition of a manufacture (even though it is man-made and physical in
 that it exists in the real world and has tangible causes and effects), and is not
 composed of matter such that it would qualify as a composition of matter.
 Nuijten, 500 F.3d at 1356-1357, 84 USPQ2d at 1501-03. As such,
 a transitory, propagating signal does not fall within any statutory category.
 Mentor Graphics Corp. v. EVE-USA, Inc., 851 F.3d 1275, 1294,
 112 USPQ2d 1120, 1133 (Fed. Cir. 2017); Nuijten, 500 F.3d at
 1356-1357, 84 USPQ2d at 1501-03. 
 

 II. ELIGIBILITY STEP 1: WHETHER A CLAIM
 IS TO A STATUTORY CATEGORY As described in MPEP § 2106 ,
 subsection III, Step 1 of the eligibility analysis asks: Is the claim to a process,
 machine, manufacture or composition of matter? Like the other steps in the
 eligibility analysis, evaluation of this step should be made after determining what
 the inventor has invented by reviewing the entire application disclosure and
 construing the claims in accordance with their broadest reasonable interpretation
 (BRI). See MPEP §
 2106 , subsection II, for more information about the
 importance of understanding what has been invented, and MPEP § 2111 for
 more information about the BRI. 
 

 In the context of the flowchart in
 MPEP §
 2106 , subsection III, Step 1 determines whether: 
 

 
 • The claim as a whole does not fall within any
 statutory category (Step 1: NO) and thus is non-statutory, warranting a
 rejection for failure to claim statutory subject matter; or
 

 • The claim as a whole falls within one or
 more statutory categories (Step 1: YES), and thus must be further analyzed to
 determine whether it qualifies as eligible at Pathway A or requires further
 analysis at Step 2A to determine if the claim is directed to a judicial
 exception. 
 

 
 A claim whose BRI covers both statutory and
 non-statutory embodiments embraces subject matter that is not eligible for patent
 protection and therefore is directed to non-statutory subject matter. Such claims
 fail the first step (Step 1: NO) and should be rejected under 35 U.S.C. 101 ,
 for at least this reason. In such a case, it is a best practice for the examiner to
 point out the BRI and recommend an amendment, if possible, that would narrow the
 claim to those embodiments that fall within a statutory category. 
 

 For example, the BRI of machine readable media can
 encompass non-statutory transitory forms of signal transmission, such as a
 propagating electrical or electromagnetic signal per se. See In re
 Nuijten, 500 F.3d 1346, 84 USPQ2d 1495 (Fed. Cir. 2007). When the BRI
 encompasses transitory forms of signal transmission, a rejection under
 35 U.S.C.
 101 as failing to claim statutory subject matter would be
 appropriate. Thus, a claim to a computer readable medium that can be a compact disc
 or a carrier wave covers a non-statutory embodiment and therefore should be rejected
 under 35 U.S.C.
 101 as being directed to non-statutory subject matter. See,
 e.g., Mentor Graphics v. EVE-USA, Inc., 851 F.3d at 1294-95,
 112 USPQ2d at 1134 (claims to a “machine-readable medium” were non-statutory, because
 their scope encompassed both statutory random-access memory and non-statutory carrier
 waves). 
 

 If a claim is clearly not within one of the four
 categories (Step 1: NO), then a rejection under 35 U.S.C. 101 must be made
 indicating that the claim is directed to non-statutory subject matter. Form
 paragraphs 7.05 and 7.05.01 should be used; see
 MPEP
 § 2106.07(a)(1) . However, as shown in the flowchart in
 MPEP §
 2106 subsection III, when a claim fails under Step 1 (Step
 1: NO), but it appears from applicant’s disclosure that the claim could be amended to
 fall within a statutory category (Step 1: YES), the analysis should proceed to
 determine whether such an amended claim would qualify as eligible at Pathway A, B or
 C. In such a case, it is a best practice for the examiner to recommend an amendment,
 if possible, that would resolve eligibility of the claim. 
 

 

 
 2106.04 Eligibility Step 2A: Whether a Claim is Directed
 to a Judicial Exception [R-07.2022]
 
 I. JUDICIAL EXCEPTIONS Determining that a claim falls within one of the four
 enumerated categories of patentable subject matter recited in 35 U.S.C. 101 
 (i.e., process, machine, manufacture, or composition of matter) in Step 1 does not
 end the eligibility analysis, because claims directed to nothing more than abstract
 ideas (such as a mathematical formula or equation), natural phenomena, and laws of
 nature are not eligible for patent protection. Diamond v. Diehr, 
 450 U.S. 175, 185, 209 USPQ 1, 7 (1981). Alice Corp. Pty. Ltd. v. CLS Bank
 Int'l, 573 U.S. 208, 216, 110 USPQ2d 1976, 1980 (2014) (citing
 Association for Molecular Pathology v. Myriad Genetics, Inc., 
 569 U.S. 576, 589, 106 USPQ2d 1972, 1979 (2013)); Diamond v.
 Chakrabarty, 447 U.S. 303, 309, 206 USPQ 193, 197 (1980);
 Parker v. Flook, 437 U.S. 584, 589, 198 USPQ 193, 197 (1978);
 Gottschalk v. Benson, 409 U.S. 63, 67-68, 175 USPQ 673, 675
 (1972). See also Bilski v. Kappos, 561 U.S. 593, 601, 95 USPQ2d
 1001, 1005-06 (2010) (“The Court’s precedents provide three specific exceptions to
 §
 101's broad patent-eligibility principles: ‘laws of nature,
 physical phenomena, and abstract ideas’”) (quoting Chakrabarty, 
 447 U.S. at 309, 206 USPQ at 197 (1980)).
 

 In addition to the terms “laws of nature,” “natural
 phenomena,” and “abstract ideas,” judicially recognized exceptions have been
 described using various other terms, including “physical phenomena,” “products of
 nature,” “scientific principles,” “systems that depend on human intelligence alone,”
 “disembodied concepts,” “mental processes,” and “disembodied mathematical algorithms
 and formulas.” It should be noted that there are no bright lines between the types of
 exceptions, and that many of the concepts identified by the courts as exceptions can
 fall under several exceptions. For example, mathematical formulas are considered to
 be a judicial exception as they express a scientific truth, but have been labelled by
 the courts as both abstract ideas and laws of nature. Likewise, “products of nature”
 are considered to be an exception because they tie up the use of naturally occurring
 things, but have been labelled as both laws of nature and natural phenomena. Thus, it
 is sufficient for this analysis for the examiner to identify that the claimed concept
 (the specific claim limitation(s) that the examiner believes may recite an exception)
 aligns with at least one judicial exception. 
 

 The Supreme Court has explained that the judicial
 exceptions reflect the Court’s view that abstract ideas, laws of nature, and natural
 phenomena are “the basic tools of scientific and technological work”, and are thus
 excluded from patentability because “monopolization of those tools through the grant
 of a patent might tend to impede innovation more than it would tend to promote it.”
 Alice Corp., 573 U.S. at 216, 110 USPQ2d at 1980 (quoting
 Myriad, 569 U.S. at 589, 106 USPQ2d at 1978 and Mayo
 Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 71, 101
 USPQ2d 1961, 1965 (2012)). The Supreme Court’s concern that drives this “exclusionary
 principle” is pre-emption. Alice Corp., 573 U.S. at 216, 110
 USPQ2d at 1980. The Court has held that a claim may not preempt abstract ideas, laws
 of nature, or natural phenomena, even if the judicial exception is narrow (e.g., a
 particular mathematical formula such as the Arrhenius equation). See, e.g.,
 Mayo, 566 U.S. at 79-80, 86-87, 101 USPQ2d at 1968-69, 1971 (claims
 directed to “narrow laws that may have limited applications” held ineligible);
 Flook, 437 U.S. at 589-90, 198 USPQ at 197 (claims that did not
 “wholly preempt the mathematical formula” held ineligible). This is because such a
 patent would “in practical effect [] be a patent on the [abstract idea, law of nature
 or natural phenomenon] itself.” Benson, 409 U.S. at 71- 72, 175
 USPQ at 676. The concern over preemption was expressed as early as 1852. See
 Le Roy v. Tatham, 55 U.S. (14 How.) 156, 175 (1852) (“A
 principle, in the abstract, is a fundamental truth; an original cause; a motive;
 these cannot be patented, as no one can claim in either of them an exclusive
 right.”). 
 

 While preemption is the concern underlying the
 judicial exceptions, it is not a standalone test for determining eligibility.
 Rapid Litig. Mgmt. v. CellzDirect, Inc., 827 F.3d 1042, 1052,
 119 USPQ2d 1370, 1376 (Fed. Cir. 2016). Instead, questions of preemption are inherent
 in and resolved by the two-part framework from Alice Corp. and
 Mayo (the Alice/Mayo test referred to by the Office
 as Steps 2A and 2B). Synopsys, Inc. v. Mentor Graphics Corp., 839
 F.3d 1138, 1150, 120 USPQ2d 1473, 1483 (Fed. Cir. 2016); Ariosa Diagnostics,
 Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379, 115 USPQ2d 1152, 1158 (Fed.
 Cir. 2015). It is necessary to evaluate eligibility using the
 Alice/Mayo test, because while a preemptive claim may be
 ineligible, the absence of complete preemption does not demonstrate that a claim is
 eligible. Diamond v. Diehr, 450 U.S. 175, 191-92 n.14, 209 USPQ 1,
 10-11 n.14 (1981) (“We rejected in Flook the argument that because
 all possible uses of the mathematical formula were not pre-empted, the claim should
 be eligible for patent protection”). See also Synopsys v. Mentor
 Graphics, 839 F.3d at 1150, 120 USPQ2d at 1483; FairWarning IP,
 LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1098, 120 USPQ2d 1293, 1299
 (Fed. Cir. 2016); Intellectual Ventures I LLC v. Symantec Corp., 
 838 F.3d 1307, 1320-21, 120 USPQ2d 1353, 1362 (Fed. Cir. 2016);
 Sequenom, 788 F.3d at 1379, 115 USPQ2d at 1158. Several Federal
 Circuit decisions, however, have noted the absence of preemption when finding claims
 eligible under the Alice/Mayo test. McRO, Inc. v. Bandai
 Namco Games Am. Inc., 837 F.3d 1299, 1315, 120 USPQ2d 1091, 1102-03
 (Fed. Cir. 2016); Rapid Litig. Mgmt. v. CellzDirect, Inc., 827
 F.3d 1042, 1052, 119 USPQ2d 1370, 1376 (Fed. Cir. 2016); BASCOM Global
 Internet v. AT&T Mobility, LLC, 827 F.3d 1341, 1350-52, 119 USPQ2d
 1236, 1243-44 (Fed. Cir. 2016). 
 

 The Supreme Court’s decisions make it clear that
 judicial exceptions need not be old or long-prevalent, and that even newly discovered
 or novel judicial exceptions are still exceptions. For example, the mathematical
 formula in Flook, the laws of nature in Mayo, 
 and the isolated DNA in Myriad were all novel or newly discovered,
 but nonetheless were considered by the Supreme Court to be judicial exceptions
 because they were “‘basic tools of scientific and technological work’ that lie beyond
 the domain of patent protection.” Myriad, 569 U.S. 576, 589, 106
 USPQ2d at 1976, 1978 (noting that Myriad discovered the BRCA1 and
 BRCA1 genes and quoting Mayo, 566 U.S. 71, 101 USPQ2d at 1965);
 Flook, 437 U.S. at 591-92, 198 USPQ2d at 198 (“the novelty of
 the mathematical algorithm is not a determining factor at all”);
 Mayo, 566 U.S. 73-74, 78, 101 USPQ2d 1966, 1968 (noting that
 the claims embody the researcher's discoveries of laws of nature). The Supreme
 Court’s cited rationale for considering even “just discovered” judicial exceptions as
 exceptions stems from the concern that “without this exception, there would be
 considerable danger that the grant of patents would ‘tie up’ the use of such tools
 and thereby ‘inhibit future innovation premised upon them.’”
 Myriad, 569 U.S. at 589, 106 USPQ2d at 1978-79 (quoting
 Mayo, 566 U.S. at 86, 101 USPQ2d at 1971). See also
 Myriad, 569 U.S. at 591, 106 USPQ2d at 1979 (“Groundbreaking,
 innovative, or even brilliant discovery does not by itself satisfy the
 §101 inquiry.”). The Federal Circuit has also applied this
 principle, for example, when holding a concept of using advertising as an exchange or
 currency to be an abstract idea, despite the patentee’s arguments that the concept
 was “new”. Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 714-15,
 112 USPQ2d 1750, 1753-54 (Fed. Cir. 2014). Cf. Synopsys, Inc. v. Mentor
 Graphics Corp., 839 F.3d 1138, 1151, 120 USPQ2d 1473, 1483 (Fed. Cir.
 2016) (“a new abstract idea is still an abstract
 idea”) (emphasis in original).
 

 For a detailed discussion of abstract ideas, see
 MPEP
 § 2106.04(a) ; for a detailed discussion of laws of nature,
 natural phenomena and products of nature, see MPEP §
 2106.04(b) . 
 

 II. ELIGIBILITY STEP 2A: WHETHER A CLAIM
 IS DIRECTED TO A JUDICIAL EXCEPTION As described in MPEP § 2106 ,
 subsection III, Step 2A of the Office’s eligibility analysis is the first part of the
 Alice/Mayo test, i.e., the Supreme Court’s
 “framework for distinguishing patents that claim laws of nature, natural phenomena,
 and abstract ideas from those that claim patent-eligible applications of those
 concepts.” Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208,
 217-18, 110 USPQ2d 1976, 1981 (2014) (citing Mayo, 566 U.S. at
 77-78, 101 USPQ2d at 1967-68). Like the other steps in the eligibility analysis,
 evaluation of this step should be made after determining what the inventor has
 invented by reviewing the entire application disclosure and construing the claims in
 accordance with their broadest reasonable interpretation. See MPEP § 2106 ,
 subsection II for more information about the importance of understanding what has
 been invented, and MPEP § 2111 for more information about the broadest
 reasonable interpretation. 
 

 Step 2A asks: Is the claim directed to a law of
 nature, a natural phenomenon (product of nature) or an abstract idea? In the context
 of the flowchart in MPEP § 2106 , subsection III, Step 2A determines whether: 
 

 
 • The claim as a whole is not directed to a
 judicial exception (Step 2A: NO) and thus is eligible at Pathway B, thereby
 concluding the eligibility analysis; or 
 

 • The claim as a whole is directed to a
 judicial exception (Step 2A: YES) and thus requires further analysis at Step 2B
 to determine if the claim as a whole amounts to significantly more than the
 exception itself. 
 

 A. Step 2A Is a Two-Prong Inquiry Step 2A is a two-prong inquiry, in which examiners
 determine in Prong One whether a claim recites a judicial exception, and if so, then
 determine in Prong Two if the recited judicial exception is integrated into a
 practical application of that exception. Together, these prongs represent the first
 part of the Alice/Mayo test, which determines whether a claim is
 directed to a judicial exception.
 

 The flowchart below depicts the two-prong analysis
 that is performed in order to answer the Step 2A inquiry. 
 

 
 1. Prong One Prong One asks does the claim recite an abstract
 idea, law of nature, or natural phenomenon? In Prong One examiners evaluate
 whether the claim recites a judicial exception, i.e. whether a law of nature,
 natural phenomenon, or abstract idea is set forth or
 described in the claim. While the terms "set forth" and
 "described" are thus both equated with "recite", their different language is
 intended to indicate that there are two ways in which an exception can be recited
 in a claim. For instance, the claims in Diehr, 450 U.S. at 178
 n. 2, 179 n.5, 191-92, 209 USPQ at 4-5 (1981), clearly stated a mathematical
 equation in the repetitively calculating step, and the claims in
 Mayo, 566 U.S. 66, 75-77, 101 USPQ2d 1961, 1967-68 (2012),
 clearly stated laws of nature in the wherein clause, such that the claims “set
 forth” an identifiable judicial exception. Alternatively, the claims in
 Alice Corp., 573 U.S. at 218, 110 USPQ2d at 1982, described
 the concept of intermediated settlement without ever explicitly using the words
 “intermediated” or “settlement.” 
 

 The Supreme Court has held that Section 101
 contains an implicit exception for ‘‘[l]aws of nature, natural phenomena, and
 abstract ideas,’’ which are ‘‘the basic tools of scientific and technological
 work.’’ Alice Corp., 573 U.S. at 216, 110 USPQ2d at 1980
 (citing Mayo, 566 US at 71, 101 USPQ2d at 1965). Yet, the Court
 has explained that ‘‘[a]t some level, all inventions embody, use, reflect, rest
 upon, or apply laws of nature, natural phenomena, or abstract ideas,’’ and has
 cautioned ‘‘to tread carefully in construing this exclusionary principle lest it
 swallow all of patent law.’’ Id. See also Enfish, LLC
 v. Microsoft Corp., 822 F.3d 1327, 1335, 118 USPQ2d 1684, 1688 (Fed.
 Cir. 2016) (“The ‘directed to’ inquiry, therefore, cannot simply ask whether the
 claims involve a patent-ineligible concept, because essentially every routinely
 patent-eligible claim involving physical products and actions involves a law of
 nature and/or natural phenomenon”). Examiners should accordingly be careful to
 distinguish claims that recite an exception (which require further
 eligibility analysis) and claims that merely involve an exception
 (which are eligible and do not require further eligibility analysis).
 

 An example of a claim that recites a judicial
 exception is “A machine comprising elements that operate in accordance with F=ma.”
 This claim sets forth the principle that force equals mass times acceleration
 (F=ma) and therefore recites a law of nature exception. Because F=ma represents a
 mathematical formula, the claim could alternatively be considered as reciting an
 abstract idea. Because this claim recites a judicial exception, it requires
 further analysis in Prong Two in order to answer the Step 2A inquiry. An example
 of a claim that merely involves, or is based on, an exception is a claim to “A
 teeter-totter comprising an elongated member pivotably attached to a base member,
 having seats and handles attached at opposing sides of the elongated member.” This
 claim is based on the concept of a lever pivoting on a fulcrum, which involves the
 natural principles of mechanical advantage and the law of the lever. However, this
 claim does not recite these natural principles and therefore is not directed to a
 judicial exception (Step 2A: NO). Thus, the claim is eligible at Pathway B without
 further analysis. 
 

 If the claim recites a judicial exception
 ( i.e., an abstract idea enumerated in MPEP §
 2106.04(a) , a law of nature, or a natural phenomenon),
 the claim requires further analysis in Prong Two. If the claim does not recite a
 judicial exception (a law of nature, natural phenomenon, or abstract idea), then
 the claim cannot be directed to a judicial exception (Step 2A: NO), and thus the
 claim is eligible at Pathway B without further analysis. 
 

 For more information how to determine if a claim
 recites an abstract idea, see MPEP §
 2106.04(a) . For more information on how to determine if
 a claim recites a law of nature or natural phenomenon, see MPEP §
 2106.04(b) . For more information on how to determine if
 a claim recites a product of nature, see MPEP §
 2106.04(c) . 
 

 2. Prong Two Prong Two asks does the claim recite additional
 elements that integrate the judicial exception into a practical application? In
 Prong Two, examiners evaluate whether the claim as a whole integrates the
 exception into a practical application of that exception. If the additional
 elements in the claim integrate the recited exception into a practical application
 of the exception, then the claim is not directed to the judicial exception (Step
 2A: NO) and thus is eligible at Pathway B. This concludes the eligibility
 analysis. If, however, the additional elements do not integrate the exception into
 a practical application, then the claim is directed to the recited judicial
 exception (Step 2A: YES), and requires further analysis under Step 2B (where it
 may still be eligible if it amounts to an ‘‘inventive concept’’). For more
 information on how to evaluate whether a judicial exception is integrated into a
 practical application, see MPEP § 2106.04(d)(2) .
 

 The mere inclusion of a judicial exception such as
 a mathematical formula (which is one of the mathematical concepts identified as an
 abstract idea in MPEP § 2106.04(a) ) in a claim
 means that the claim “recites” a judicial exception under Step 2A Prong One.
 However, mere recitation of a judicial exception does not mean that the claim is
 “directed to” that judicial exception under Step 2A Prong Two. Instead, under
 Prong Two, a claim that recites a judicial exception is not directed to that
 judicial exception, if the claim as a whole integrates the recited judicial
 exception into a practical application of that exception. Prong Two thus
 distinguishes claims that are “directed to” the recited judicial exception from
 claims that are not “directed to” the recited judicial exception.
 

 Because a judicial exception is not eligible
 subject matter, Bilski, 561 U.S. at 601, 95 USPQ2d at 1005-06
 (quoting Chakrabarty, 447 U.S. at 309, 206 USPQ at 197 (1980)),
 if there are no additional claim elements besides the judicial exception, or if
 the additional claim elements merely recite another judicial exception, that is
 insufficient to integrate the judicial exception into a practical application.
 See, e.g., RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322,
 1327, 122 USPQ2d 1377 (Fed. Cir. 2017) (“Adding one abstract idea (math) to
 another abstract idea (encoding and decoding) does not render the claim
 non-abstract”); Genetic Techs. Ltd. v. Merial LLC, 818 F.3d
 1369, 1376, 118 USPQ2d 1541, 1546 (Fed. Cir. 2016) (eligibility “cannot be
 furnished by the unpatentable law of nature (or natural phenomenon or abstract
 idea) itself.”). For a claim reciting a judicial exception to be eligible, the
 additional elements (if any) in the claim must “transform the nature of the claim”
 into a patent-eligible application of the judicial exception, Alice
 Corp., 573 U.S. at 217, 110 USPQ2d at 1981, either at Prong Two or in
 Step 2B. If there are no additional elements in the claim, then it cannot be
 eligible. In such a case, after making the appropriate rejection (see
 MPEP § 2106.07 for more information on formulating a
 rejection for lack of eligibility), it is a best practice for the examiner to
 recommend an amendment, if possible, that would resolve eligibility of the claim.
 
 

 B. Evaluating Claims Reciting Multiple Judicial
 Exceptions A claim may recite multiple judicial exceptions.
 For example, claim 4 at issue in Bilski v. Kappos, 561 U.S.
 593, 95 USPQ2d 1001 (2010) recited two abstract ideas, and the claims at issue in
 Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S.
 66, 101 USPQ2d 1961 (2012) recited two laws of nature. However, these claims were
 analyzed by the Supreme Court in the same manner as claims reciting a single
 judicial exception, such as those in Alice Corp., 573 U.S. 208,
 110 USPQ2d 1976. 
 

 During examination, examiners should apply the
 same eligibility analysis to all claims regardless of the number of exceptions
 recited therein. Unless it is clear that a claim recites distinct exceptions, such
 as a law of nature and an abstract idea, care should be taken not to parse the
 claim into multiple exceptions, particularly in claims involving abstract ideas.
 Accordingly, if possible examiners should treat the claim for Prong Two and Step
 2B purposes as containing a single judicial exception. 
 

 In some claims, the multiple exceptions are
 distinct from each other, e.g., a first limitation describes a
 law of nature, and a second limitation elsewhere in the claim recites an abstract
 idea. In these cases, for purposes of examination efficiency, examiners should
 select one of the exceptions and conduct the eligibility analysis for that
 selected exception. If the analysis indicates that the claim recites an additional
 element or combination of elements that integrate the selected exception into a
 practical application or that amount to significantly more than the selected
 exception, then the claim should be considered patent eligible. On the other hand,
 if the claim does not recite any additional element or combination of elements
 that integrate the selected exception into a practical application, and also does
 not recite any additional element or combination of elements that amounts to
 significantly more than the selected exception, then the claim should be
 considered ineligible. University of Utah Research Foundation v. Ambry
 Genetics, 774 F.3d 755, 762, 113 USPQ2d 1241, 1246 (Fed. Cir. 2014)
 (because claims did not amount to significantly more than the recited abstract
 idea, court “need not decide” if claims also recited a law of nature).
 

 In other claims, multiple abstract ideas, which
 may fall in the same or different groupings, or multiple laws of nature may be
 recited. In these cases, examiners should not parse the claim. For example, in a
 claim that includes a series of steps that recite mental steps as well as a
 mathematical calculation, an examiner should identify the claim as reciting both a
 mental process and a mathematical concept for Step 2A Prong One to make the
 analysis clear on the record. However, if possible, the examiner should consider
 the limitations together as a single abstract idea for Step 2A Prong Two and Step
 2B (if necessary) rather than as a plurality of separate abstract ideas to be
 analyzed individually.
 

 
 2106.04(a) Abstract Ideas [R-07.2022]

 The abstract idea exception has deep roots in the
 Supreme Court’s jurisprudence. See Bilski v. Kappos, 561 U.S. 593,
 601-602, 95 USPQ2d 1001, 1006 (2010) (citing Le Roy v. Tatham, 55
 U.S. (14 How.) 156, 174–175 (1853)). Despite this long history, the courts have
 declined to define abstract ideas. However, it is clear from the body of judicial
 precedent that software and business methods are not excluded categories of subject
 matter. For example, the Supreme Court concluded that business methods are not
 “categorically outside of § 101's scope,” stating that “a
 business method is simply one kind of ‘method’ that is, at least in some
 circumstances, eligible for patenting under § 101 .”
 Bilski, 561 U.S. at 607, 95 USPQ2d at 1008 (2010). See also
 Content Extraction and Transmission, LLC v. Wells Fargo Bank, 
 776 F.3d 1343, 1347, 113 USPQ2d 1354, 1357 (Fed. Cir. 2014) (“there is no categorical
 business-method exception”). Likewise, software is not automatically an abstract
 idea, even if performance of a software task involves an underlying mathematical
 calculation or relationship. See, e.g., Thales Visionix, Inc. v. United
 States, 850 F.3d 1343, 121 USPQ2d 1898, 1902 (Fed. Cir. 2017) (“That a
 mathematical equation is required to complete the claimed method and system does not
 doom the claims to abstraction.”); McRO, Inc. v. Bandai Namco Games Am.
 Inc., 837 F.3d 1299, 1316, 120 USPQ2d 1091, 1103 (Fed. Cir. 2016)
 (methods of automatic lip synchronization and facial expression animation using
 computer-implemented rules were not directed to an abstract idea); Enfish,
 822 F.3d 1327, 1336, 118 USPQ2d 1684, 1689 (Fed. Cir. 2016) (claims to
 self-referential table for a computer database were not directed to an abstract
 idea). 
 

 To facilitate examination, the Office has set forth an
 approach to identifying abstract ideas that distills the relevant case law into
 enumerated groupings of abstract ideas. The enumerated groupings are firmly rooted in
 Supreme Court precedent as well as Federal Circuit decisions interpreting that
 precedent, as is explained in MPEP § 2106.04(a)(2) . This approach
 represents a shift from the former case-comparison approach that required examiners
 to rely on individual judicial cases when determining whether a claim recites an
 abstract idea. By grouping the abstract ideas, the examiners’ focus has been shifted
 from relying on individual cases to generally applying the wide body of case law
 spanning all technologies and claim types.
 

 The enumerated groupings of abstract ideas are
 defined as:
 

 
 1) Mathematical concepts – mathematical
 relationships, mathematical formulas or equations, mathematical calculations
 (see MPEP § 2106.04(a)(2) ,
 subsection I);
 

 2) Certain methods of organizing human activity –
 fundamental economic principles or practices (including hedging, insurance,
 mitigating risk); commercial or legal interactions (including agreements in the
 form of contracts; legal obligations; advertising, marketing or sales
 activities or behaviors; business relations); managing personal behavior or
 relationships or interactions between people (including social activities,
 teaching, and following rules or instructions) (see MPEP §
 2106.04(a)(2) , subsection II); and
 

 3) Mental processes – concepts performed in the
 human mind (including an observation, evaluation, judgment, opinion) (see
 MPEP § 2106.04(a)(2) , subsection III).
 

 
 Examiners should determine whether a claim recites an
 abstract idea by (1) identifying the specific limitation(s) in the claim under
 examination that the examiner believes recites an abstract idea, and (2) determining
 whether the identified limitations(s) fall within at least one of the groupings of
 abstract ideas listed above. The groupings of abstract ideas, and their relationship
 to the body of judicial precedent, are further discussed in MPEP §
 2106.04(a)(2) . 
 

 If the identified limitation(s) falls within at least
 one of the groupings of abstract ideas, it is reasonable to conclude that the claim
 recites an abstract idea in Step 2A Prong One. The claim then requires further
 analysis in Step 2A Prong Two, to determine whether any additional elements in the
 claim integrate the abstract idea into a practical application, see
 MPEP
 § 2106.04(d) .
 

 If the identified limitation(s) do not fall within
 any of the groupings of abstract ideas, it is reasonable to find that the claim does
 not recite an abstract idea. This concludes the abstract idea judicial exception
 eligibility analysis, except in the rare circumstance discussed in
 MPEP
 § 2106.04(a)(3) , below. The claim is thus eligible at
 Pathway B unless the claim recites, and is directed to, another exception (such as a
 law of nature or natural phenomenon).
 

 If the claims recites another judicial exception (i.e.
 law of nature or natural phenomenon), see MPEP §§
 2106.04(b) and 2106.04(c) for more information on Step 2A analysis.
 

 MPEP § 2106.04(a)(1) provides
 examples of claims that do not recite abstract ideas (or other judicial exceptions)
 and thus are eligible at Step 2A Prong One. 
 

 MPEP § 2106.04(a)(2) provides
 further explanation on the abstract idea groupings. It should be noted that these
 groupings are not mutually exclusive, i.e., some claims recite limitations that fall
 within more than one grouping or sub-grouping. For example, a claim reciting
 performing mathematical calculations using a formula that could be practically
 performed in the human mind may be considered to fall within the mathematical
 concepts grouping and the mental process grouping. Accordingly, examiners should
 identify at least one abstract idea grouping, but preferably identify all groupings
 to the extent possible, if a claim limitation(s) is determined to fall within
 multiple groupings and proceed with the analysis in Step 2A Prong Two. 
 

 
 2106.04(a)(1) Examples of Claims That Do Not Recite
 Abstract Ideas [R-10.2019]
 

 When evaluating a claim to determine whether it
 recites an abstract idea, examiners should keep in mind that while “all inventions
 at some level embody, use, reflect, rest upon, or apply laws of nature, natural
 phenomenon, or abstract ideas”, not all claims recite an abstract idea. See
 Alice Corp. Pty. Ltd. v. CLS Bank, Int’l, 573 U.S. 208, 217,
 110 USPQ2d 1976, 1980-81 (2014) (citing Mayo Collaborative Servs. v.
 Prometheus Labs. Inc., 566 US 66, 71, 101 USPQ2d 1961, 1965 (2012)).
 The Step 2A Prong One analysis articulated in MPEP §
 2106.04 accounts for this cautionary principle by
 requiring a claim to recite ( i.e., set forth or describe) an
 abstract idea in Prong One before proceeding to the Prong Two inquiry about
 whether the claim is directed to that idea, thereby separating claims reciting
 abstract ideas from those that are merely based on or involve an abstract
 idea.
 

 Some claims are not directed to an abstract idea
 because they do not recite an abstract idea, although it may be apparent that at
 some level they are based on or involve an abstract idea. Because these claims do
 not recite an abstract idea (or other judicial exception), they are eligible at
 Step 2A Prong One (Pathway B).
 

 Non-limiting hypothetical examples of claims that
 do not recite (set forth or describe) an abstract idea include: 
 

 
 i. a printer comprising a belt, a roller, a
 printhead and at least one ink cartridge; 
 

 ii. a washing machine comprising a tub, a drive
 motor operatively connected to the tub, a controller for controlling the
 drive motor, and a housing for containing the tub, drive motor, and
 controller; 
 

 iii. an earring comprising a sensor for taking
 periodic blood glucose measurements and a memory for storing measurement
 data from the sensor;
 

 iv. a method for sequencing BRCA1 gene sequences
 comprising: amplifying by a polymerization chain reaction technique all or
 part of a BRCA1 gene from a tissue sample from a human subject using a set
 of primers to produce amplified nucleic acids; and sequencing the amplified
 nucleic acids;
 

 v. a method for loading BIOS into a local
 computer system which has a system processor and volatile memory and
 non-volatile memory, the method comprising the steps of: responding to
 powering up of the local computer system by requesting from a memory
 location remote from the local computer system the transfer to and storage
 in the volatile memory of the local computer system of BIOS configured for
 effective use of the local computer system, transferring and storing such
 BIOS, and transferring control of the local computer system to such
 BIOS;
 

 vi. a method of rearranging icons on a graphical
 user interface (GUI) comprising the steps of: receiving a user selection to
 organize each icon based on the amount of use of each icon, determining the
 amount of use of each icon by using a processor to track the amount of
 memory allocated to the application associated with the icon over a period
 of time, and automatically moving the most used icons to a position in the
 GUI closest to the start icon of the computer system based on the determined
 amount of use; and
 

 vii. a method of training a neural network for
 facial detection comprising: collecting a set of digital facial images,
 applying one or more transformations to the digital images, creating a first
 training set including the modified set of digital facial images; training
 the neural network in a first stage using the first training set, creating a
 second training set including digital non-facial images that are incorrectly
 detected as facial images in the first stage of training; and training the
 neural network in a second stage using the second training set. 
 

 
 

 
 2106.04(a)(2) Abstract Idea Groupings [R-07.2022]
 I. MATHEMATICAL
 CONCEPTS The mathematical concepts grouping is defined
 as mathematical relationships, mathematical formulas or equations, and
 mathematical calculations. The Supreme Court has identified a number of
 concepts falling within this grouping as abstract ideas including: a procedure
 for converting binary-coded decimal numerals into pure binary form,
 Gottschalk v. Benson, 409 U.S. 63, 65, 175 USPQ2d 673,
 674 (1972); a mathematical formula for calculating an alarm limit,
 Parker v. Flook, 437 U.S. 584, 588-89, 198 USPQ2d 193,
 195 (1978); the Arrhenius equation, Diamond v. Diehr, 450
 U.S. 175, 191, 209 USPQ 1, 15 (1981); and a mathematical formula for hedging,
 Bilski v. Kappos, 561 U.S. 593, 611, 95 USPQ 2d 1001,
 1004 (2010). 
 

 The Court’s rationale for identifying these
 “mathematical concepts” as judicial exceptions is that a ‘‘mathematical formula
 as such is not accorded the protection of our patent laws,’’
 Diehr, 450 U.S. at 191, 209 USPQ at 15 (citing
 Benson, 409 U.S. 63, 175 USPQ 673), and thus ‘‘the
 discovery of [a mathematical formula] cannot support a patent unless there is
 some other inventive concept in its application.’’ Flook, 
 437 U.S. at 594, 198 USPQ at 199. In the past, the Supreme Court sometimes
 described mathematical concepts as laws of nature, and at other times described
 these concepts as judicial exceptions without specifying a particular type of
 exception. See, e.g., Benson, 409 U.S. at 65, 175 USPQ2d at
 674; Flook, 437 U.S. at 589, 198 USPQ2d at 197;
 Mackay Radio & Telegraph Co. v. Radio Corp. of Am., 
 306 U.S. 86, 94, 40 USPQ 199, 202 (1939) (‘‘[A] scientific truth, or the
 mathematical expression of it, is not patentable invention[.]’’). More recent
 opinions of the Supreme Court, however, have affirmatively characterized
 mathematical relationships and formulas as abstract ideas. See, e.g.,
 Alice Corp. Pty. Ltd. v. CLS Bank Int’l , 573 U.S. 208, 218, 110
 USPQ2d 1976, 1981 (2014) (describing Flook as holding “that
 a mathematical formula for computing ‘alarm limits’ in a catalytic conversion
 process was also a patent-ineligible abstract idea.”); Bilski v.
 Kappos, 561 U.S. 593, 611-12, 95 USPQ2d 1001, 1010 (2010) (noting
 that the claimed “concept of hedging, described in claim 1 and reduced to a
 mathematical formula in claim 4, is an unpatentable abstract idea,”). 
 

 When determining whether a claim recites a
 mathematical concept ( i.e., mathematical relationships,
 mathematical formulas or equations, and mathematical calculations), examiners
 should consider whether the claim recites a mathematical concept or merely
 limitations that are based on or involve a mathematical concept. A claim does
 not recite a mathematical concept ( i.e., the claim
 limitations do not fall within the mathematical concept grouping), if it is
 only based on or involves a mathematical concept. See, e.g., Thales
 Visionix, Inc. v. United States, 850 F.3d 1343, 1348-49, 121
 USPQ2d 1898, 1902-03 (Fed. Cir. 2017) (determining that the claims to a
 particular configuration of inertial sensors and a particular method of using
 the raw data from the sensors in order to more accurately calculate the
 position and orientation of an object on a moving platform did not merely
 recite “the abstract idea of using ‘mathematical equations for determining the
 relative position of a moving object to a moving reference frame’.”). For
 example, a limitation that is merely based on or involves a mathematical
 concept described in the specification may not be sufficient to fall into this
 grouping, provided the mathematical concept itself is not recited in the claim. 
 

 It is important to note that a mathematical
 concept need not be expressed in mathematical symbols, because “[w]ords used in
 a claim operating on data to solve a problem can serve the same purpose as a
 formula.” In re Grams, 888 F.2d 835, 837 and n.1, 12 USPQ2d
 1824, 1826 and n.1 (Fed. Cir. 1989). See, e.g., SAP America, Inc. v.
 InvestPic, LLC, 898 F.3d 1161, 1163, 127 USPQ2d 1597, 1599 (Fed.
 Cir. 2018) (holding that claims to a ‘‘series of mathematical calculations
 based on selected information’’ are directed to abstract ideas);
 Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 
 758 F.3d 1344, 1350, 111 USPQ2d 1717, 1721 (Fed. Cir. 2014) (holding that
 claims to a ‘‘process of organizing information through mathematical
 correlations’’ are directed to an abstract idea); and Bancorp Servs.,
 LLC v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1280,
 103 USPQ2d 1425, 1434 (Fed. Cir. 2012) (identifying the concept of ‘‘managing a
 stable value protected life insurance policy by performing calculations and
 manipulating the results’’ as an abstract idea).
 

 A. Mathematical Relationships A mathematical relationship is a
 relationship between variables or numbers. A mathematical relationship may
 be expressed in words or using mathematical symbols. For example, pressure
 (p) can be described as the ratio between the magnitude of the normal force
 (F) and area of the surface on contact (A), or it can be set forth in the
 form of an equation such as p = F/A. 
 

 Examples of mathematical relationships
 recited in a claim include:
 

 
 i. a relationship between reaction rate
 and temperature, which relationship can be expressed in the form of a
 formula called the Arrhenius equation, Diamond v.
 Diehr; 450 U.S. at 178 n. 2, 179 n.5, 191-92, 209 USPQ at
 4-5 (1981);
 

 ii. a conversion between binary coded
 decimal and pure binary, Benson, 409 U.S. at 64,
 175 USPQ at 674; 
 

 iii. a mathematical relationship between
 enhanced directional radio activity and antenna conductor arrangement
 ( i.e., the length of the conductors with respect
 to the operating wave length and the angle between the conductors),
 Mackay Radio & Tel. Co. v. Radio Corp. of
 America, 306 U.S. 86, 91, 40 USPQ 199, 201 (1939) (while
 the litigated claims 15 and 16 of U.S. Patent No. 1,974,387 expressed
 this mathematical relationship using a formula that described the
 angle between the conductors, other claims in the patent
 ( e.g., claim 1) expressed the mathematical
 relationship in words); and 
 

 iv. organizing information and
 manipulating information through mathematical correlations,
 Digitech Image Techs., LLC v. Electronics for Imaging,
 Inc., 758 F.3d 1344, 1350, 111 USPQ2d 1717, 1721 (Fed.
 Cir. 2014). The patentee in Digitech claimed
 methods of generating first and second data by taking existing
 information, manipulating the data using mathematical functions, and
 organizing this information into a new form. The court explained that
 such claims were directed to an abstract idea because they described a
 process of organizing information through mathematical correlations,
 like Flook's method of calculating using a
 mathematical formula. 758 F.3d at 1350, 111 USPQ2d at 1721. 
 

 B. Mathematical Formulas or Equations A claim that recites a numerical formula or
 equation will be considered as falling within the “mathematical concepts”
 grouping. In addition, there are instances where a formula or equation is
 written in text format that should also be considered as falling within this
 grouping. For example, the phrase “determining a ratio of A to B” is merely
 using a textual replacement for the particular equation (ratio = A/B).
 Additionally, the phrase “calculating the force of the object by multiplying
 its mass by its acceleration” is using a textual replacement for the
 particular equation (F= ma). 
 

 Examples of mathematical equations or formulas
 recited in a claim include:
 

 
 i. a formula describing certain
 electromagnetic standing wave phenomena, Mackay Radio &
 Tel. Co. v. Radio Corp. of America, 306 U.S. 86, 91, 40
 USPQ 199, 201 (1939) (50.9(l/lambda<-0.513>);
 

 ii. the Arrhenius equation,
 Diamond v. Diehr; 450 U.S. 175, 178 n. 2, 179
 n.5, 191-92, 209 USPQ at 4-5 (1981) (ln v = CZ + x);
 

 iii. a formula for computing an alarm
 limit, Parker v. Flook, 437 U.S. 584, 585, 198 USPQ
 193, 195 (1978) (B1=B0 (1.0–F) + PVL(F)); and
 

 iv. a mathematical formula for hedging
 (claim 4), Bilski v. Kappos, 561 U.S. 593, 599, 95
 USPQ2d 1001, 1004 (2010) (Fixed Bill Price = Fi + [(Ci + Ti + LDi) x
 (α + βE(Wi))]).
 

 C. Mathematical
 Calculations A claim that recites a mathematical
 calculation, when the claim is given its broadest reasonable interpretation
 in light of the specification, will be considered as falling within the
 “mathematical concepts” grouping. A mathematical calculation is a
 mathematical operation (such as multiplication) or an act of calculating
 using mathematical methods to determine a variable or number,
 e.g., performing an arithmetic operation such as
 exponentiation. There is no particular word or set of words that indicates a
 claim recites a mathematical calculation. That is, a claim does not have to
 recite the word “calculating” in order to be considered a mathematical
 calculation. For example, a step of “determining” a variable or number using
 mathematical methods or “performing” a mathematical operation may also be
 considered mathematical calculations when the broadest reasonable
 interpretation of the claim in light of the specification encompasses a
 mathematical calculation.
 

 Examples of mathematical calculations
 recited in a claim include:
 

 
 i. performing a resampled statistical
 analysis to generate a resampled distribution, SAP America,
 Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163-65, 127
 USPQ2d 1597, 1598-1600 (Fed. Cir. 2018), modifying SAP
 America, Inc. v. InvestPic, LLC, 890 F.3d 1016, 126
 USPQ2d 1638 (Fed. Cir. 2018);
 

 ii. calculating a number representing an
 alarm limit value using the mathematical formula
 ‘‘B 1 =B 0 (1.0–F) +
 PVL(F)’’, Parker v. Flook, 437 U.S. 584, 585, 198
 USPQ 193, 195 (1978);
 

 iii. using a formula to convert geospatial
 coordinates into natural numbers, Burnett v. Panasonic
 Corp., 741 Fed. Appx. 777, 780 (Fed. Cir. 2018)
 (non-precedential);
 

 iv. managing a stable value protected life
 insurance policy via performing calculations, Bancorp Servs.,
 LLC v. Sun Life Assur. Co. of Canada (U.S.) , 687 F.3d
 1266, 1280, 103 USPQ2d 1425, 1434 (Fed. Cir. 2012);
 

 v. using an algorithm for determining the
 optimal number of visits by a business representative to a client,
 In re Maucorps, 609 F.2d 481, 482, 203 USPQ 812,
 813 (CCPA 1979); and 
 

 vi. calculating the difference between
 local and average data values, In re Abele, 684
 F.2d 902, 903, 214 USPQ 682, 683-84 (CCPA 1982).
 

 II. CERTAIN METHODS OF ORGANIZING
 HUMAN ACTIVITY The phrase “methods of organizing human
 activity” is used to describe concepts relating to:
 

 
 • fundamental economic principles or
 practices (including hedging, insurance, mitigating risk); 
 

 • commercial or legal interactions
 (including agreements in the form of contracts, legal obligations,
 advertising, marketing or sales activities or behaviors, and business
 relations); and 
 

 • managing personal behavior or
 relationships or interactions between people, (including social
 activities, teaching, and following rules or instructions). 
 

 
 The Supreme Court has identified a number of
 concepts falling within the “certain methods of organizing human activity”
 grouping as abstract ideas. In particular, in Alice, the
 Court concluded that the use of a third party to mediate settlement risk is a
 ‘‘fundamental economic practice’’ and thus an abstract idea. 573 U.S. at
 219–20, 110 USPQ2d at 1982. In addition, the Court in Alice 
 described the concept of risk hedging identified as an abstract idea in
 Bilski as ‘‘a method of organizing human activity’’.
 Id. Previously, in Bilski, the Court
 concluded that hedging is a ‘‘fundamental economic practice’’ and therefore an
 abstract idea. 561 U.S. at 611–612, 95 USPQ2d at 1010.
 

 The term “certain” qualifies the “certain
 methods of organizing human activity” grouping as a reminder of several
 important points. First, not all methods of organizing human activity are
 abstract ideas ( e.g., “a defined set of steps for combining
 particular ingredients to create a drug formulation” is not a certain "method
 of organizing human activity”), In re Marco Guldenaar Holding
 B.V., 911 F.3d 1157, 1160-61, 129 USPQ2d 1008, 1011 (Fed. Cir.
 2018). Second, this grouping is limited to activity that falls within the
 enumerated sub-groupings of fundamental economic principles or practices,
 commercial or legal interactions, and managing personal behavior and
 relationships or interactions between people, and is not to be expanded beyond
 these enumerated sub-groupings except in rare circumstances as explained in
 MPEP § 2106.04(a)(3) . Finally, the sub-groupings
 encompass both activity of a single person (for example, a person following a
 set of instructions or a person signing a contract online) and activity that
 involves multiple people (such as a commercial interaction), and thus, certain
 activity between a person and a computer (for example a method of anonymous
 loan shopping that a person conducts using a mobile phone) may fall within the
 “certain methods of organizing human activity” grouping. It is noted that the
 number of people involved in the activity is not dispositive as to whether a
 claim limitation falls within this grouping. Instead, the determination should
 be based on whether the activity itself falls within one of the sub-groupings. 
 

 A. Fundamental Economic Practices or
 Principles The courts have used the phrases “fundamental
 economic practices” or “fundamental economic principles” to describe
 concepts relating to the economy and commerce. Fundamental economic
 principles or practices include hedging, insurance, and mitigating
 risks.
 

 The term “fundamental” is not used in the
 sense of necessarily being “old” or “well-known.” See, e.g., OIP
 Techs., Inc. v. Amazon.com, Inc. , 788 F.3d 1359, 1364, 115
 U.S.P.Q.2d 1090, 1092 (Fed Cir. 2015) (a new method of price optimization
 was found to be a fundamental economic concept); In re
 Smith, 815 F.3d 816, 818-19, 118 USPQ2d 1245, 1247 (Fed. Cir.
 2016) (describing a new set of rules for conducting a wagering game as a
 “fundamental economic practice”); In re Greenstein, 774
 Fed. Appx. 661, 664, 2019 USPQ2d 212400 (Fed Cir. 2019) (non-precedential)
 (claims to a new method of allocating returns to different investors in an
 investment fund was a fundamental economic concept). However, being old or
 well-known may indicate that the practice is fundamental. See,
 e.g., Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573
 U.S. 208, 219-20, 110 USPQ2d 1981-82 (2014) (describing the concept of
 intermediated settlement, like the risk hedging in
 Bilski, to be a “‘fundamental economic practice long
 prevalent in our system of commerce’” and also as “a building block of the
 modern economy”) (citation omitted); Bilski v. Kappos, 
 561 U.S. 593, 611, 95 USPQ2d 1001, 1010 (2010) (claims to the concept of
 hedging are a “fundamental economic practice long prevalent in our system of
 commerce and taught in any introductory finance class.”) (citation omitted);
 Intellectual Ventures I LLC v. Symantec Corp., 838
 F.3d 1307, 1313, 120 USPQ2d 1353, 1356 (Fed. Cir. 2016) (“The category of
 abstract ideas embraces ‘fundamental economic practice[s] long prevalent in
 our system of commerce,’ … including ‘longstanding commercial
 practice[s]’”).
 

 An example of a case identifying a claim as
 reciting a fundamental economic practice is Bilski v.
 Kappos, 561 U.S. 593, 609, 95 USPQ2d 1001, 1009 (2010). The
 fundamental economic practice at issue was hedging or protecting against
 risk. The applicant in Bilski claimed “a series of steps
 instructing how to hedge risk,” i.e., how to protect
 against risk. 561 U.S. at 599, 95 USPQ2d at 1005. The method allowed energy
 suppliers and consumers to minimize the risks resulting from fluctuations in
 market demand for energy. The Supreme Court determined that hedging is
 “fundamental economic practice” and therefore is an “unpatentable abstract
 idea.” 561 U.S. at 611-12, 95 USPQ2d at 1010. 
 

 Another example of a case identifying a
 claim as reciting a fundamental economic practice is Bancorp
 Services., L.L.C. v. Sun Life Assurance Co. of Canada (U.S.), 
 687 F.3d 1266, 103 USPQ2d 1425 (Fed. Cir. 2012). The fundamental economic
 practice at issue in Bancorp pertained to insurance. The
 patentee in Bancorp claimed methods and systems for
 managing a life insurance policy on behalf of a policy holder, which
 comprised steps including generating a life insurance policy including a
 stable value protected investment with an initial value based on a value of
 underlying securities, calculating surrender value protected investment
 credits for the life insurance policy; determining an investment value and a
 value of the underlying securities for the current day; and calculating a
 policy value and a policy unit value for the current day. 687 F.3d at
 1270-71, 103 USPQ2d at 1427. The court described the claims as an “attempt
 to patent the use of the abstract idea of [managing a stable value protected
 life insurance policy] and then instruct the use of well-known
 [calculations] to help establish some of the inputs into the equation.” 687
 F.3d at 1278, 103 USPQ2d at 1433 (alterations in original) (citing
 Bilski ).
 

 Other examples of "fundamental economic
 principles or practices" include: 
 

 
 i. mitigating settlement risk,
 Alice Corp. v. CLS Bank, 573 U.S. 208, 218, 110
 USPQ2d 1976, 1982 (2014);
 

 ii. rules for conducting a wagering game,
 In re Smith, 815 F.3d 816, 818-19, 118 USPQ2d
 1245, 1247 (Fed. Cir. 2016); 
 

 iii. financial instruments that are
 designed to protect against the risk of investing in financial
 instruments, In re Chorna, 656 Fed. App'x 1016,
 1021 (Fed. Cir. 2016) (non-precedential);
 

 iv. offer-based price optimization,
 OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d
 1359, 1362–63, 115 USPQ2d 1090, 1092-93 (Fed. Cir. 2015);
 

 v. local processing of payments for
 remotely purchased goods, Inventor Holdings, LLC v. Bed Bath
 Beyond, 876 F.3d 1372, 1378-79, 125 USPQ2d 1019, 1023
 (Fed. Cir. 2017); 
 

 vi. using a marking affixed to the outside
 of a mail object to communicate information about the mail object,
 i.e., the sender, recipient, and contents of the
 mail object, Secured Mail Solutions LLC v. Universal Wilde,
 Inc., 873 F.3d 905, 911, 124 USPQ2d 1502, 1506 (Fed. Cir.
 2017); and 
 

 vii. placing an order based on displayed
 market information, Trading Technologies Int’l, Inc. v. IBG
 LLC, 921 F.3d 1084, 1092, 2019 USPQ2d 138290 (Fed. Cir.
 2019).
 

 B. Commercial or Legal Interactions “Commercial interactions” or “legal
 interactions” include agreements in the form of contracts, legal
 obligations, advertising, marketing or sales activities or behaviors, and
 business relations.
 

 An example of a claim reciting a commercial
 or legal interaction, where the interaction is an agreement in the form of
 contracts, is found in buySAFE, Inc. v. Google, Inc., 765
 F.3d. 1350, 112 USPQ2d 1093 (Fed. Cir. 2014). The agreement at issue in
 buySAFE was a transaction performance guaranty, which
 is a contractual relationship. 765 F.3d at 1355, 112 USPQ2d at 1096. The
 patentee claimed a method in which a computer operated by the provider of a
 safe transaction service receives a request for a performance guarantee for
 an online commercial transaction, the computer processes the request by
 underwriting the requesting party in order to provide the transaction
 guarantee service, and the computer offers, via a computer network, a
 transaction guaranty that binds to the transaction upon the closing of the
 transaction. 765 F.3d at 1351-52, 112 USPQ2d at 1094. The Federal Circuit
 described the claims as directed to an abstract idea because they were
 “squarely about creating a contractual relationship--a ‘transaction
 performance guaranty’.” 765 F.3d at 1355, 112 USPQ2d at 1096.
 

 Other examples of subject matter where the
 commercial or legal interaction is an agreement in the form of contracts
 include:
 

 
 i. managing a stable value protected life
 insurance policy via performing calculations, Bancorp Servs.,
 LLC v. Sun Life Assur. Co. of Canada (U.S.), 687 F.3d
 1266, 1280, 103 USPQ2d 1425, 1434 (Fed. Cir. 2012); and
 

 ii. processing insurance claims for a
 covered loss or policy event under an insurance policy
 ( i.e., an agreement in the form of a contract),
 Accenture Global Services v. Guidewire Software,
 Inc., 728 F.3d 1336, 1338-39, 108 USPQ2d 1173, 1175-76
 (Fed. Cir. 2013).
 

 
 An example of a claim reciting a commercial
 or legal interaction in the form of a legal obligation is found in
 Fort Properties, Inc. v. American Master Lease, LLC, 
 671 F.3d 1317, 101 USPQ2d 1785 (Fed Cir. 2012). The patentee claimed a
 method of “aggregating real property into a real estate portfolio, dividing
 the interests in the portfolio into a number of deedshares, and subjecting
 those shares to a master agreement.” 671 F.3d at 1322, 101 USPQ2d at 1788.
 The legal obligation at issue was the tax-free exchanges of real estate. The
 Federal Circuit concluded that the real estate investment tool designed to
 enable tax-free exchanges was an abstract concept. 671 F.3d at 1323, 101
 USPQ2d at 1789. 
 

 Other examples of subject matter where the
 commercial or legal interaction is a legal obligation include:
 

 
 i. hedging, Bilski v.
 Kappos , 561 U.S. 593, 595, 95 USPQ2d 1001, 1004
 (2010);
 

 ii. mitigating settlement risk,
 Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573
 U.S. 208, 218, 110 USPQ2d 1976, 1979 (2014); and
 

 iii. arbitration, In re
 Comiskey , 554 F.3d 967, 981, 89 USPQ2d 1655, 1665 (Fed.
 Cir. 2009).
 

 
 An example of a claim reciting advertising is
 found in Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709,
 714-15, 112 USPQ2d 1750, 1753-54 (Fed. Cir. 2014). The patentee in
 Ultramercial claimed an eleven-step method for
 displaying an advertisement (ad) in exchange for access to copyrighted
 media, comprising steps of receiving copyrighted media, selecting an ad,
 offering the media in exchange for watching the selected ad, displaying the
 ad, allowing the consumer access to the media, and receiving payment from
 the sponsor of the ad. 772 F.3d. at 715, 112 USPQ2d at 1754. The Federal
 Circuit determined that the "combination of steps recites an abstraction—an
 idea, having no particular concrete or tangible form" and thus was directed
 to an abstract idea, which the court described as "using advertising as an
 exchange or currency." Id. 

 Other examples of subject matter where the
 commercial or legal interaction is advertising, marketing or sales
 activities or behaviors include:
 

 
 i. structuring a sales force or marketing
 company, which pertains to marketing or sales activities or behaviors,
 In re Ferguson, 558 F.3d 1359, 1364, 90 USPQ2d
 1035, 1038 (Fed. Cir. 2009); 
 

 ii. using an algorithm for determining the
 optimal number of visits by a business representative to a client,
 In re Maucorps, 609 F.2d 481, 485, 203 USPQ 812,
 816 (CCPA 1979); and
 

 iii. offer-based price optimization, which
 pertains to marketing, OIP Techs., Inc. v. Amazon.com,
 Inc., 788 F.3d 1359, 1362-63, 115 USPQ2d 1090, 1092 (Fed.
 Cir. 2015).
 

 
 An example of a claim reciting business
 relations is found in Credit Acceptance Corp. v. Westlake
 Services, 859 F.3d 1044, 123 USPQ2d 1100 (Fed. Cir. 2017). The
 business relation at issue in Credit Acceptance is the
 relationship between a customer and dealer when processing a credit
 application to purchase a vehicle. The patentee claimed a “system for
 maintaining a database of information about the items in a dealer’s
 inventory, obtaining financial information about a customer from a user,
 combining these two sources of information to create a financing package for
 each of the inventoried items, and presenting the financing packages to the
 user.” 859 F.3d at 1054, 123 USPQ2d at 1108. The Federal Circuit described
 the claims as directed to the abstract idea of “processing an application
 for financing a loan” and found “no meaningful distinction between this type
 of financial industry practice” and the concept of intermediated settlement
 in Alice or the hedging concept in
 Bilski. 859 F.3d at 1054, 123 USPQ2d at 1108. 
 

 Another example of subject matter where the
 commercial or legal interaction is business relations includes:
 

 
 i. processing information through a
 clearing-house, where the business relation is the relationship
 between a party submitted a credit application
 ( e.g., a car dealer) and funding sources
 ( e.g., banks) when processing credit
 applications, Dealertrack v. Huber, 674 F.3d 1315,
 1331, 101 USPQ2d 1325, 1339 (Fed. Cir. 2012).
 

 C. Managing Personal Behavior or Relationships or Interactions
 Between People The sub-grouping “managing personal behavior
 or relationships or interactions between people” include social activities,
 teaching, and following rules or instructions. 
 

 An example of a claim reciting managing
 personal behavior is Intellectual Ventures I LLC v. Capital One
 Bank (USA), 792 F.3d 1363, 115 USPQ2d 1636 (Fed. Cir. 2015).
 The patentee in this case claimed methods comprising storing user-selected
 pre-set limits on spending in a database, and when one of the limits is
 reached, communicating a notification to the user via a device. 792 F.3d. at
 1367, 115 USPQ2d at 1639-40. The Federal Circuit determined that the claims
 were directed to the abstract idea of “tracking financial transactions to
 determine whether they exceed a pre-set spending limit
 ( i.e., budgeting)”, which “is not meaningfully
 different from the ideas found to be abstract in other cases before the
 Supreme Court and our court involving methods of organizing human activity.”
 792 F.3d. at 1367-68, 115 USPQ2d at 1640. 
 

 Other examples of managing personal behavior
 recited in a claim include:
 

 
 i. filtering content, BASCOM
 Global Internet v. AT&T Mobility, LLC, 827 F.3d 1341,
 1345-46, 119 USPQ2d 1236, 1239 (Fed. Cir. 2016) (finding that
 filtering content was an abstract idea under step 2A, but reversing an
 invalidity judgment of ineligibility due to an inadequate step 2B
 analysis); 
 

 ii. considering historical usage
 information while inputting data, BSG Tech. LLC v.
 Buyseasons, Inc., 899 F.3d 1281, 1286, 127 USPQ2d 1688,
 1691 (Fed. Cir. 2018); and
 

 iii. a mental process that a neurologist
 should follow when testing a patient for nervous system malfunctions,
 In re Meyer, 688 F.2d 789, 791-93, 215 USPQ 193,
 194-96 (CCPA 1982). 
 

 
 An example of a claim reciting social
 activities is Voter Verified, Inc. v. Election Systems &
 Software, LLC, 887 F.3d 1376, 126 USPQ2d 1498 (Fed. Cir. 2018).
 The social activity at issue in Voter Verified was
 voting. The patentee claimed “[a] method for voting providing for
 self-verification of a ballot comprising the steps of” presenting an
 election ballot for voting, accepting input of the votes, storing the votes,
 printing out the votes, comparing the printed votes to votes stored in the
 computer, and determining whether the printed ballot is acceptable. 887 F.3d
 at 1384-85, 126 USPQ2d at 1503-04. The Federal Circuit found that the claims
 were directed to the abstract idea of “voting, verifying the vote, and
 submitting the vote for tabulation”, which is a “fundamental activity that
 forms the basis of our democracy” and has been performed by humans for
 hundreds of years. 887 F.3d at 1385-86, 126 USPQ2d at 1504-05. 
 

 Another example of a claim reciting social
 activities is Interval Licensing LLC, v. AOL, Inc., 896
 F.3d 1335, 127 USPQ2d 1553 (Fed. Cir. 2018). The social activity at issue
 was the social activity of “’providing information to a person without
 interfering with the person’s primary activity.’” 896 F.3d at 1344, 127
 USPQ2d 1553 (citing Interval Licensing LLC v. AOL, Inc., 
 193 F. Supp.3d 1184, 1188 (W.D. 2014)). The patentee claimed an attention
 manager for acquiring content from an information source, controlling the
 timing of the display of acquired content, displaying the content, and
 acquiring an updated version of the previously-acquired content when the
 information source updates its content. 896 F.3d at 1339-40, 127 USPQ2d at
 1555. The Federal Circuit concluded that “[s]tanding alone, the act of
 providing someone an additional set of information without disrupting the
 ongoing provision of an initial set of information is an abstract idea,”
 observing that the district court “pointed to the nontechnical human
 activity of passing a note to a person who is in the middle of a meeting or
 conversation as further illustrating the basic, longstanding practice that
 is the focus of the [patent ineligible] claimed invention.” 896 F.3d at
 1344-45, 127 USPQ2d at 1559.
 

 An example of a claim reciting following
 rules or instructions is In re Marco Guldenaar Holding
 B.V., 911 F.3d 1157, 1161, 129 USPQ2d 1008, 1011 (Fed. Cir.
 2018). The patentee claimed a method of playing a dice game including
 placing wagers on whether certain die faces will appear face up. 911 F.3d at
 1160; 129 USPQ2d at 1011. The Federal Circuit determined that the claims
 were directed to the abstract idea of “rules for playing games”, which the
 court characterized as a certain method of organizing human activity. 911
 F.3d at 1160-61; 129 USPQ2d at 1011. 
 

 Other examples of following rules or
 instructions recited in a claim include:
 

 
 i. assigning hair designs to balance head
 shape, In re Brown , 645 Fed. Appx. 1014, 1015-16
 (Fed. Cir. 2016) (non-precedential); and
 

 ii. a series of instructions of how to
 hedge risk, Bilski v. Kappos , 561 U.S. 593, 595, 95
 USPQ2d 1001, 1004 (2010).
 

 III. MENTAL
 PROCESSES The courts consider a mental process (thinking)
 that “can be performed in the human mind, or by a human using a pen and paper”
 to be an abstract idea. CyberSource Corp. v. Retail Decisions,
 Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011).
 As the Federal Circuit explained, “methods which can be performed mentally, or
 which are the equivalent of human mental work, are unpatentable abstract ideas
 the ‘basic tools of scientific and technological work’ that are open to all.’”
 654 F.3d at 1371, 99 USPQ2d at 1694 (citing Gottschalk v.
 Benson, 409 U.S. 63, 175 USPQ 673 (1972)). See also Mayo
 Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 71,
 101 USPQ2d 1961, 1965 (2012) (“‘[M]ental processes[] and abstract intellectual
 concepts are not patentable, as they are the basic tools of scientific and
 technological work’” (quoting Benson, 409 U.S. at 67, 175
 USPQ at 675)); Parker v. Flook, 437 U.S. 584, 589, 198 USPQ
 193, 197 (1978) (same). 
 

 Accordingly, the “mental processes” abstract
 idea grouping is defined as concepts performed in the human mind, and examples
 of mental processes include observations, evaluations, judgments, and opinions.
 A discussion of concepts performed in the human mind, as well as concepts that
 cannot practically be performed in the human mind and thus are not “mental
 processes”, is provided below with respect to point A. 
 

 The courts do not distinguish between mental
 processes that are performed entirely in the human mind and mental processes
 that require a human to use a physical aid ( e.g., pen and
 paper or a slide rule) to perform the claim limitation. See, e.g.,
 Benson, 409 U.S. at 67, 65, 175 USPQ at 674-75, 674 (noting that
 the claimed “conversion of [binary-coded decimal] numerals to pure binary
 numerals can be done mentally,” i.e., “as a person would do
 it by head and hand.”); Synopsys, Inc. v. Mentor Graphics
 Corp., 839 F.3d 1138, 1139, 120 USPQ2d 1473, 1474 (Fed. Cir. 2016)
 (holding that claims to a mental process of “translating a functional
 description of a logic circuit into a hardware component description of the
 logic circuit” are directed to an abstract idea, because the claims “read on an
 individual performing the claimed steps mentally or with pencil and paper”).
 Mental processes performed by humans with the assistance of physical aids such
 as pens or paper are explained further below with respect to point B.
 

 Nor do the courts distinguish between claims
 that recite mental processes performed by humans and claims that recite mental
 processes performed on a computer. As the Federal Circuit has explained,
 “[c]ourts have examined claims that required the use of a computer and still
 found that the underlying, patent-ineligible invention could be performed via
 pen and paper or in a person’s mind.” Versata Dev. Group v. SAP Am.,
 Inc., 793 F.3d 1306, 1335, 115 USPQ2d 1681, 1702 (Fed. Cir. 2015).
 See also Intellectual Ventures I LLC v. Symantec Corp., 838
 F.3d 1307, 1318, 120 USPQ2d 1353, 1360 (Fed. Cir. 2016) (‘‘[W]ith the exception
 of generic computer-implemented steps, there is nothing in the claims
 themselves that foreclose them from being performed by a human, mentally or
 with pen and paper.’’); Mortgage Grader, Inc. v. First Choice Loan
 Servs. Inc., 811 F.3d 1314, 1324, 117 USPQ2d 1693, 1699 (Fed. Cir.
 2016) (holding that computer-implemented method for "anonymous loan shopping"
 was an abstract idea because it could be "performed by humans without a
 computer"). Mental processes recited in claims that require computers are
 explained further below with respect to point C. 
 

 Because both product and process claims may
 recite a “mental process”, the phrase “mental processes” should be understood
 as referring to the type of abstract idea, and not to the statutory category of
 the claim. The courts have identified numerous product claims as reciting
 mental process-type abstract ideas, for instance the product claims to computer
 systems and computer-readable media in Versata Dev. Group. v. SAP Am.,
 Inc., 793 F.3d 1306, 115 USPQ2d 1681 (Fed. Cir. 2015). This
 concept is explained further below with respect to point D.
 

 The following discussion is meant to guide
 examiners and provide more information on how to determine whether a claim
 recites a mental process. Examiners should keep in mind the following points A,
 B, C, and D when performing this evaluation.
 

 A. A Claim With Limitation(s) That Cannot Practically be Performed
 in the Human Mind Does Not Recite a Mental
 Process Claims do not recite a mental process when
 they do not contain limitations that can practically be performed in the
 human mind, for instance when the human mind is not equipped to perform the
 claim limitations. See SRI Int’l, Inc. v. Cisco Systems,
 Inc., 930 F.3d 1295, 1304 (Fed. Cir. 2019) (declining to
 identify the claimed collection and analysis of network data as abstract
 because “the human mind is not equipped to detect suspicious activity by
 using network monitors and analyzing network packets as recited by the
 claims”); CyberSource, 654 F.3d at 1376, 99 USPQ2d at
 1699 (distinguishing Research Corp. Techs. v. Microsoft
 Corp., 627 F.3d 859, 97 USPQ2d 1274 (Fed. Cir. 2010), and
 SiRF Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319,
 94 USPQ2d 1607 (Fed. Cir. 2010), as directed to inventions that ‘‘could not,
 as a practical matter, be performed entirely in a human’s mind’’). 
 

 Examples of claims that do not recite mental
 processes because they cannot be practically performed in the human mind
 include:
 

 
 • a claim to a method for calculating
 an absolute position of a GPS receiver and an absolute time of
 reception of satellite signals, where the claimed GPS receiver
 calculated pseudoranges that estimated the distance from the GPS
 receiver to a plurality of satellites, SiRF Tech., 
 601 F.3d at 1331-33, 94 USPQ2d at 1616-17; 
 

 • a claim to detecting suspicious
 activity by using network monitors and analyzing network packets,
 SRI Int’l, 930 F.3d at 1304;
 

 • a claim to a specific data
 encryption method for computer communication involving a several-step
 manipulation of data, Synopsys., 839 F.3d at 1148,
 120 USPQ2d at 1481 (distinguishing the claims in TQP
 Development, LLC v. Intuit Inc., 2014 WL 651935 (E.D.
 Tex. 2014)); and
 

 • a claim to a method for rendering a
 halftone image of a digital image by comparing, pixel by pixel, the
 digital image against a blue noise mask, where the method required the
 manipulation of computer data structures ( e.g., the
 pixels of a digital image and a two-dimensional array known as a mask)
 and the output of a modified computer data structure (a halftoned
 digital image), Research Corp. Techs., 627 F.3d at
 868, 97 USPQ2d at 1280.
 

 
 In contrast, claims do recite a mental
 process when they contain limitations that can practically be performed in
 the human mind, including for example, observations, evaluations, judgments,
 and opinions. Examples of claims that recite mental processes include:
 

 
 • a claim to “collecting information,
 analyzing it, and displaying certain results of the collection and
 analysis,” where the data analysis steps are recited at a high level
 of generality such that they could practically be performed in the
 human mind, Electric Power Group v. Alstom, S.A., 
 830 F.3d 1350, 1353-54, 119 USPQ2d 1739, 1741-42 (Fed. Cir. 2016);
 
 

 • claims to “comparing BRCA sequences
 and determining the existence of alterations,” where the claims cover
 any way of comparing BRCA sequences such that the comparison steps can
 practically be performed in the human mind, University of
 Utah Research Foundation v. Ambry Genetics, 774 F.3d 755,
 763, 113 USPQ2d 1241, 1246 (Fed. Cir. 2014); 
 

 • a claim to collecting and comparing
 known information (claim 1), which are steps that can be practically
 performed in the human mind, Classen Immunotherapies, Inc. v.
 Biogen IDEC, 659 F.3d 1057, 1067, 100 USPQ2d 1492, 1500
 (Fed. Cir. 2011); and 
 

 • a claim to identifying head shape
 and applying hair designs, which is a process that can be practically
 performed in the human mind, In re Brown, 645 Fed.
 App'x 1014, 1016-17 (Fed. Cir. 2016) (non-precedential).
 

 B. A Claim That Encompasses a Human Performing the Step(s)
 Mentally With or Without a Physical Aid Recites a Mental
 Process If a claim recites a limitation that can
 practically be performed in the human mind, with or without the use of a
 physical aid such as pen and paper, the limitation falls within the mental
 processes grouping, and the claim recites an abstract idea. See,
 e.g., Benson, 409 U.S. at 67, 65, 175 USPQ at 674-75,
 674 (noting that the claimed “conversion of [binary-coded decimal] numerals
 to pure binary numerals can be done mentally,” i.e., “as
 a person would do it by head and hand.”); Synopsys, 839
 F.3d at 1139, 120 USPQ2d at 1474 (holding that claims to the mental process
 of “translating a functional description of a logic circuit into a hardware
 component description of the logic circuit” are directed to an abstract
 idea, because the claims “read on an individual performing the claimed steps
 mentally or with pencil and paper”). 
 

 The use of a physical aid
 ( e.g., pencil and paper or a slide rule) to help
 perform a mental step ( e.g., a mathematical calculation)
 does not negate the mental nature of the limitation, but simply accounts for
 variations in memory capacity from one person to another. For instance, in
 CyberSource, the court determined that the step of
 “constructing a map of credit card numbers” was a limitation that was able
 to be performed “by writing down a list of credit card transactions made
 from a particular IP address.” In making this determination, the court
 looked to the specification, which explained that the claimed map was
 nothing more than a listing of several ( e.g., four)
 credit card transactions. The court concluded that this step was able to be
 performed mentally with a pen and paper, and therefore, it qualified as a
 mental process. 654 F.3d at 1372-73, 99 USPQ2d at 1695. See also
 Flook, 437 U.S. at 586, 198 USPQ at 196 (claimed
 “computations can be made by pencil and paper calculations”);
 University of Florida Research Foundation, Inc. v. General
 Electric Co., 916 F.3d 1363, 1367, 129 USPQ2d 1409, 1411-12
 (Fed. Cir. 2019) (relying on specification’s description of the claimed
 analysis and manipulation of data as being performed mentally “‘using pen
 and paper methodologies, such as flowsheets and patient charts’”);
 Symantec, 838 F.3d at 1318, 120 USPQ2d at 1360
 (although claimed as computer-implemented, steps of screening messages can
 be “performed by a human, mentally or with pen and paper”). 
 

 C. A Claim That Requires a Computer May Still Recite a Mental
 Process Claims can recite a mental process even if
 they are claimed as being performed on a computer. The Supreme Court
 recognized this in Benson, determining that a
 mathematical algorithm for converting binary coded decimal to pure binary
 within a computer’s shift register was an abstract idea. The Court concluded
 that the algorithm could be performed purely mentally even though the
 claimed procedures “can be carried out in existing computers long in use, no
 new machinery being necessary.” 409 U.S at 67, 175 USPQ at 675. See also
 Mortgage Grader, 811 F.3d at 1324, 117 USPQ2d at 1699
 (concluding that concept of “anonymous loan shopping” recited in a computer
 system claim is an abstract idea because it could be “performed by humans
 without a computer”). 
 

 In evaluating whether a claim that requires a
 computer recites a mental process, examiners should carefully consider the
 broadest reasonable interpretation of the claim in light of the
 specification. For instance, examiners should review the specification to
 determine if the claimed invention is described as a concept that is
 performed in the human mind and applicant is merely claiming that concept
 performed 1) on a generic computer, or 2) in a computer environment, or 3)
 is merely using a computer as a tool to perform the concept. In these
 situations, the claim is considered to recite a mental process. 
 

 
 1. Performing a mental process on a
 generic computer. An example of a case identifying a mental
 process performed on a generic computer as an abstract idea is
 Voter Verified, Inc. v. Election Systems & Software,
 LLC, 887 F.3d 1376, 1385, 126 USPQ2d 1498, 1504 (Fed.
 Cir. 2018). In this case, the Federal Circuit relied upon the
 specification in explaining that the claimed steps of voting,
 verifying the vote, and submitting the vote for tabulation are “human
 cognitive actions” that humans have performed for hundreds of years.
 The claims therefore recited an abstract idea, despite the fact that
 the claimed voting steps were performed on a computer. 887 F.3d at
 1385, 126 USPQ2d at 1504. Another example is
 Versata, in which the patentee claimed a system
 and method for determining a price of a product offered to a
 purchasing organization that was implemented using general purpose
 computer hardware. 793 F.3d at 1312-13, 1331, 115 USPQ2d at 1685,
 1699. The Federal Circuit acknowledged that the claims were performed
 on a generic computer, but still described the claims as “directed to
 the abstract idea of determining a price, using organizational and
 product group hierarchies, in the same way that the claims in
 Alice were directed to the abstract idea of
 intermediated settlement, and the claims in Bilski 
 were directed to the abstract idea of risk hedging.” 793 F.3d at 1333;
 115 USPQ2d at 1700-01. 
 

 2. Performing a mental process in a
 computer environment. An example of a case identifying a
 mental process performed in a computer environment as an abstract idea
 is Symantec Corp., 838 F.3d at 1316-18, 120 USPQ2d
 at 1360. In this case, the Federal Circuit relied upon the
 specification when explaining that the claimed electronic post office,
 which recited limitations describing how the system would receive,
 screen and distribute email on a computer network, was analogous to
 how a person decides whether to read or dispose of a particular piece
 of mail and that “with the exception of generic computer-implemented
 steps, there is nothing in the claims themselves that foreclose them
 from being performed by a human, mentally or with pen and paper”. 838
 F.3d at 1318, 120 USPQ2d at 1360. Another example is
 FairWarning IP, LLC v. Iatric Sys., Inc., 839
 F.3d 1089, 120 USPQ2d 1293 (Fed. Cir. 2016). The patentee in
 FairWarning claimed a system and method of
 detecting fraud and/or misuse in a computer environment, in which
 information regarding accesses of a patient’s personal health
 information was analyzed according to one of several rules
 ( i.e., related to accesses in excess of a
 specific volume, accesses during a pre-determined time interval, or
 accesses by a specific user) to determine if the activity indicates
 improper access. 839 F.3d. at 1092, 120 USPQ2d at 1294. The court
 determined that these claims were directed to a mental process of
 detecting misuse, and that the claimed rules here were “the same
 questions (though perhaps phrased with different words) that humans in
 analogous situations detecting fraud have asked for decades, if not
 centuries.” 839 F.3d. at 1094-95, 120 USPQ2d at 1296.
 

 3. Using a computer as a tool to
 perform a mental process. An example of a case in which a
 computer was used as a tool to perform a mental process is
 Mortgage Grader, 811 F.3d. at 1324, 117 USPQ2d
 at 1699. The patentee in Mortgage Grader claimed a
 computer-implemented system for enabling borrowers to anonymously shop
 for loan packages offered by a plurality of lenders, comprising a
 database that stores loan package data from the lenders, and a
 computer system providing an interface and a grading module. The
 interface prompts a borrower to enter personal information, which the
 grading module uses to calculate the borrower’s credit grading, and
 allows the borrower to identify and compare loan packages in the
 database using the credit grading. 811 F.3d. at 1318, 117 USPQ2d at
 1695. The Federal Circuit determined that these claims were directed
 to the concept of “anonymous loan shopping”, which was a concept that
 could be “performed by humans without a computer.” 811 F.3d. at 1324,
 117 USPQ2d at 1699. Another example is Berkheimer v. HP,
 Inc., 881 F.3d 1360, 125 USPQ2d 1649 (Fed. Cir. 2018), in
 which the patentee claimed methods for parsing and evaluating data
 using a computer processing system. The Federal Circuit determined
 that these claims were directed to mental processes of parsing and
 comparing data, because the steps were recited at a high level of
 generality and merely used computers as a tool to perform the
 processes. 881 F.3d at 1366, 125 USPQ2d at 1652-53. 
 

 D. Both Product and
 Process Claims May Recite a Mental
 Process Examiners should keep in mind that both
 product claims ( e.g., computer system, computer-readable
 medium, etc.) and process claims may recite mental processes. For example,
 in Mortgage Grader, the patentee claimed a
 computer-implemented system and a method for enabling borrowers to
 anonymously shop for loan packages offered by a plurality of lenders,
 comprising a database that stores loan package data from the lenders, and a
 computer system providing an interface and a grading module. The Federal
 Circuit determined that both the computer-implemented system and method
 claims were directed to “anonymous loan shopping”, which was an abstract
 idea because it could be “performed by humans without a computer.” 811 F.3d.
 at 1318, 1324-25, 117 USPQ2d at 1695, 1699-1700. See also
 FairWarning IP, 839 F.3d at 1092, 120 USPQ2d at 1294
 (identifying both system and process claims for detecting improper access of
 a patient's protected health information in a health-care system computer
 environment as directed to abstract idea of detecting fraud);
 Content Extraction & Transmission LLC v. Wells Fargo Bank,
 N.A., 776 F.3d 1343, 1345, 113 USPQ2d 1354, 1356 (Fed. Cir.
 2014) (system and method claims of inputting information from a hard copy
 document into a computer program). Accordingly, the phrase “mental
 processes” should be understood as referring to the type of abstract idea,
 and not to the statutory category of the claim. 
 

 Examples of product claims reciting mental
 processes include:
 

 
 • An application program interface for
 extracting and processing information from a diversity of types of
 hard copy documents – Content Extraction, 776 F.3d
 at 1345, 113 USPQ2d at 1356;
 

 • A computer-implemented system for
 enabling anonymous loan shopping – Mortgage Grader, 
 811 F.3d at 1318, 117 USPQ2d at 1695;
 

 • A computer readable medium
 containing program instructions for detecting fraud –
 CyberSource, 654 F.3d at 1368 n. 1, 99 USPQ2d at
 1692 n.1;
 

 • A post office for receiving and
 redistributing email messages on a computer network –
 Symantec, 838 F.3d at 1316, 120 USPQ2d at 1359;
 
 

 • A self-verifying voting system –
 Voter Verified, 887 F.3d at 1384-85, 126 USPQ2d
 at 1504;
 

 • A wide-area real-time performance
 monitoring system for monitoring and assessing dynamic stability of an
 electric power grid – Electric Power Group, 830
 F.3d at 1351 and n.1, 119 USPQ2d at 1740 and n.1; and
 

 • Computer readable storage media
 comprising computer instructions to implement a method for determining
 a price of a product offered to a purchasing organization –
 Versata, 793 F.3d at 1312-13, 115 USPQ2d at
 1685.
 

 
 Examples of process claims reciting mental
 process-type abstract ideas are discussed in the preceding subsections (A)
 through (C). See, for example, the discussion of Flook, 
 437 U.S. 584, 198 USPQ 193; Benson, 409 U.S. 63, 175 USPQ
 673; Berkheimer, 881 F.3d 1360, 125 USPQ2d 1649;
 Synopsys, 839 F.3d 1138, 120 USPQ2d 1473; and
 Ambry Genetics, 774 F.3d 755, 113 USPQ2d 1241,
 supra .
 

 

 
 2106.04(a)(3) Tentative Abstract
 Ideas [R-10.2019]
 

 There may be rare circumstances in which an
 examiner believes a claim limitation should be treated as an abstract idea even
 though it does not fall within any of the groupings of abstract ideas discussed in
 MPEP § 2106.04(a)(2) (i.e., mathematical concepts,
 certain methods of organizing human activity, mental processes). This type of
 claim limitation is referred to as a “tentative abstract idea.”
 

 In such circumstances, the examiner should
 evaluate the claim under the subject matter eligibility framework: 
 

 
 • If the claim as a whole integrates the
 tentative abstract idea into a practical application, the claim is not
 directed to a judicial exception (Step 2A; NO) and thus is
 eligible at Pathway B. This concludes the eligibility
 analysis. 
 

 • If the claim as a whole does not integrate
 the tentative abstract idea into a practical application, then the claim is
 directed to a judicial exception (Step 2A: YES) and thus requires further
 analysis at Step 2B. At Step 2B, if the claim as a whole provides an
 inventive concept (Step 2B: YES), the claim is eligible at
 Pathway C. This concludes the eligibility analysis. 
 

 • If the claim as a whole does not provide
 an inventive concept (Step 2B: NO), the application should be brought to the
 attention of the Technology Center (TC) director. A rejection of a claim
 reciting a tentative abstract idea must be approved by the TC director
 (which approval will be indicated in the file record of the application) and
 must provide a justification for why such claim limitation is being treated
 as reciting an abstract idea.
 

 The TC Director will give approval for a Step
 2B subject matter eligibility rejection of a claim reciting a tentative
 abstract idea. The ensuing Office action will identify that the claim(s) are
 directed to a previously non-enumerated abstract idea via form paragraph
 7.05.017 and include the TC Director’s
 signature. The TC Director will then inform Patents Management that this
 procedure has been used so that the public can be notified, for example, on
 USPTO.GOV at the Subject Matter Eligibility website. 
 

 In response to a Step 2B rejection of a claim
 reciting a tentative abstract idea, an interview with the examiner may be
 conducted, which may help advance prosecution and identify patent eligible
 subject matter. See MPEP § 713 . For applications
 in which an abstract idea has been identified using the tentative abstract idea
 procedure, an interview with the TC Director that provided approval is not
 necessary because the examiner retains the authority to withdraw or maintain a
 rejection upon consideration of applicant’s reply. The examiner is not required
 to obtain TC Director approval to withdraw or maintain such a § 101 
 subject matter eligibility rejection.
 

 
 

 

 
 2106.04(b) Laws of Nature, Natural Phenomena &
 Products of Nature [R-10.2019]
 

 Laws of nature and natural phenomena, as identified by
 the courts, include naturally occurring principles/relations and nature-based
 products that are naturally occurring or that do not have markedly different
 characteristics compared to what occurs in nature. The courts have often described
 these exceptions using other terms, including “physical phenomena,” “scientific
 principles”, “natural laws,” and “products of nature.” 
 

 I. LAWS OF NATURE AND NATURAL
 PHENOMENA, GENERALLY The law of nature and natural phenomenon
 exceptions reflect the Supreme Court's view that the basic tools of scientific and
 technological work are not patentable, because the “manifestations of laws of
 nature” are “part of the storehouse of knowledge,” “free to all men and reserved
 exclusively to none.” Funk Bros. Seed Co. v. Kalo Inoculant
 Co., 333 U.S. 127, 130, 76 USPQ 280, 281 (1948). Thus, “a new mineral
 discovered in the earth or a new plant found in the wild is not patentable subject
 matter” under Section 101 . Diamond v. Chakrabarty, 447
 U.S. 303, 309, 206 USPQ 193, 197 (1980). “Likewise, Einstein could not patent his
 celebrated law that E=mc 2 ; nor could Newton have
 patented the law of gravity.” Id. Nor can one patent “a novel
 and useful mathematical formula,” Parker v. Flook, 437 U.S.
 584, 585, 198 USPQ 193, 195 (1978); electromagnetism or steam power,
 O’Reilly v. Morse, 56 U.S. (15 How.) 62, 113-114 (1853); or
 “[t]he qualities of ... bacteria, ... the heat of the sun, electricity, or the
 qualities of metals,” Funk, 333 U.S. at 130, 76 USPQ at 281;
 see also Le Roy v. Tatham, 55 U.S. (14 How.) 156, 175
 (1853).
 

 The courts have identified the following concepts
 and products as examples of laws of nature or natural phenomena: 
 

 
 i. isolated DNA, Ass’n for Molecular
 Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589-91, 106
 USPQ2d 1972, 1978-79 (2013);
 

 ii. a cloned farm animal such as a sheep,
 In re Roslin Institute (Edinburgh), 750 F.3d 1333,
 1337, 110 USPQ2d 1668, 1671 (Fed. Cir. 2014);
 

 iii. a correlation between variations in
 non-coding regions of DNA and allele presence in coding regions of DNA,
 Genetic Techs. Ltd. v. Merial LLC, 818 F.3d 1369,
 1375, 118 USPQ2d 1541, 1545 (Fed. Cir. 2016);
 

 iv. a correlation that is the consequence of how
 a certain compound is metabolized by the body, Mayo Collaborative
 Servs. v. Prometheus Labs., 566 U.S. 66, 75-77, 101 USPQ2d
 1961, 1967-68 (2012);
 

 v. a correlation between the presence of
 myeloperoxidase in a bodily sample (such as blood or plasma) and
 cardiovascular disease risk, Cleveland Clinic Foundation v. True
 Health Diagnostics, LLC, 859 F.3d 1352, 1361, 123 USPQ2d 1081,
 1087 (Fed. Cir. 2017);
 

 vi. electromagnetism to transmit signals,
 O’Reilly v. Morse, 56 U.S. 62, 113 (1853);
 

 vii. qualities of bacteria such as their ability
 to create a state of inhibition or non-inhibition in other bacteria,
 Funk Bros., 333 U.S. at 130, 76 USPQ at 281;
 

 viii. single-stranded DNA fragments known as
 “primers”, University of Utah Research Foundation v. Ambry Genetics
 Corp., 774 F.3d 755, 761, 113 USPQ2d 1241, 1244 (Fed. Cir.
 2014);
 

 ix. the chemical principle underlying the union
 between fatty elements and water, Tilghman v. Proctor, 
 102 U.S. 707, 729 (1880);
 

 x. the existence of cell-free fetal DNA (cffDNA)
 in maternal blood, Ariosa Diagnostics, Inc. v. Sequenom, 
 788 F.3d 1371, 1373, 115 USPQ2d 1152, 1153 (Fed. Cir. 2015); and
 

 xi. the natural relationship between a patient’s
 CYP2D6 metabolizer genotype and the risk that the patient will suffer QTc
 prolongation after administration of a medication called iloperidone,
 Vanda Pharmaceuticals Inc. v. West-Ward
 Pharmaceuticals, 887 F.3d 1117, 1135-36, 126 USPQ2d 1266, 1281
 (Fed. Cir. 2018). 
 

 
 The courts have also noted, however, that not every
 claim describing a natural ability or quality of a product, or describing a
 natural process, necessarily recites a law of nature or natural phenomenon. See
 Rapid Litig. Mgmt. v. CellzDirect, Inc., 827 F.3d 1042,
 1048-49, 119 USPQ2d 1370, 1374 (Fed. Cir. 2016) (claims reciting process steps of
 fractionating, recovering, and cryopreserving hepatocytes held to be eligible,
 because they are not focused on merely observing or detecting the ability of
 hepatocytes to survive multiple freeze-thaw cycles). Thus, in a claimed method of
 treating cancer with chemotherapy, the cancer cells’ inability to survive
 chemotherapy is not considered to be a law of nature. Similarly, in a claimed
 method of treating headaches with aspirin, the human body’s natural response to
 aspirin is not considered to be a law of nature. These claims are accordingly
 eligible at Prong One unless they recite another exception, in which case they
 require further analysis in Prong Two (and Step 2B, if needed) to determine their
 eligibility. Similarly, a method of producing a new compound is not directed to
 the individual components’ ability to combine to form the new compound.
 Id. See also Tilghman v. Proctor, 102
 U.S. 707, 729 (1881) (claims reciting process steps for manufacturing fatty acids
 and glycerol by hydrolyzing fat at high temperature and pressure were held to be
 eligible, because they are not focused on the chemical principle that fat can be
 hydrolyzed into its components). 
 

 Even if a claim does recite a law of nature or
 natural phenomenon, it may still be eligible at any of Pathways A through C. For
 example, claims reciting a naturally occurring relationship between a patient’s
 genotype and the risk of QTc prolongation (a law of nature) were held eligible as
 not “directed to” that relationship because they also recited a step of treating
 the patient with an amount of a particular medication that was tailored to the
 patient’s genotype. Vanda Pharms., 887 F.3d at 1134-36, 126
 USPQ2d at 1279-81. This particular treatment step applied the natural relationship
 in a manner that integrated it into a practical application. The court’s analysis
 in Vanda is equivalent to a finding of eligibility at Step 2A
 Prong Two (Pathway B).
 

 As explained in MPEP §
 2106.04 , a claim that recites a law of nature or a
 natural phenomenon requires further analysis in Step 2A Prong Two to determine
 whether the claim integrates the exception into a practical application. 
 

 A claim that does not recite a law of nature or
 natural phenomenon is eligible at Pathway B (Step 2A: NO) unless the claim
 recites, and is directed to, another exception (such as an abstract idea, or a
 product of nature). 
 

 II. PRODUCTS OF
 NATURE When a law of nature or natural phenomenon is
 claimed as a physical product, the courts have often referred to the exception as
 a “product of nature”. For example, the isolated DNA of Myriad 
 and the primers of Ambry Genetics were described as products of
 nature by the courts. Ass’n for Molecular Pathology v. Myriad Genetics,
 Inc., 569 U.S. 576, 580, 106 USPQ2d 1972, 1975 (2013);
 University of Utah Research Foundation v. Ambry Genetics, 
 774 F.3d 755, 758-59, 113 USPQ2d 1241, 1243 (Fed. Cir. 2014). As explained in
 those decisions, products of nature are considered to be an exception because they
 tie up the use of naturally occurring things, but they have been labeled as both
 laws of nature and natural phenomena. See Myriad Genetics,
 Inc., 569 U.S. at 590-91, 106 USPQ2d at 1979 (claims to isolated DNA
 held ineligible because they “claim naturally occurring phenomena” and are
 “squarely within the law of nature exception”); Funk Bros. Seed Co. v.
 Kalo Inoculant Co., 333 U.S. 127, 130, 76 USPQ 280, 281 (1948)
 (claims to bacterial mixtures held ineligible as “manifestations of laws of
 nature” and “phenomena of nature”). Step 2A of the Office’s eligibility analysis
 uses the terms “law of nature” and “natural phenomenon” as inclusive of “products
 of nature”. 
 

 It is important to keep in mind that product of
 nature exceptions include both naturally occurring products and non-naturally
 occurring products that lack markedly different characteristics from any naturally
 occurring counterpart. See, e.g., Ambry Genetics, 774 F.3d at 760, 113 USPQ2d at 1244 (“Contrary
 to Myriad's argument, it makes no difference that the
 identified gene sequences are synthetically replicated. As the Supreme Court made
 clear, neither naturally occurring compositions of matter, nor synthetically
 created compositions that are structurally identical to the naturally occurring
 compositions, are patent eligible.”). Thus, a synthetic, artificial, or
 non-naturally occurring product such as a cloned organism or a human-made hybrid
 plant is not automatically eligible because it was created by human ingenuity or
 intervention. See, e.g., In re Roslin Institute (Edinburgh), 750 F.3d 1333, 1337, 110
 USPQ2d 1668, 1671-72 (Fed. Cir. 2014) (cloned sheep); cf. J.E.M. Ag
 Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 130-132, 60
 USPQ2d 1868-69 (2001) (hybrid plant). Instead, the key to the eligibility of all
 non-naturally occurring products is whether they possess markedly different
 characteristics from any naturally occurring counterpart. 
 

 When a claim recites a nature-based product
 limitation, examiners should use the markedly different characteristics analysis
 discussed in MPEP § 2106.04(c) to evaluate the
 nature-based product limitation and determine the answer to Step 2A. Nature-based
 products, as used herein, include both eligible and ineligible products and merely
 refer to the types of products subject to the markedly different characteristics
 analysis used to identify product of nature exceptions. Examples of nature-based
 products include the isolated gene and cDNA sequences of
 Myriad, the cloned farm animals of
 Roslin, and the bacterium of Chakrabarty .
 As is evident from these examples, and as further discussed in
 MPEP §
 2105 , a nature-based product that is a living organism
 ( e.g., a plant, an animal, a bacterium, etc.) is not
 excluded from patent protection merely because it is alive, and such a product is
 eligible for patenting if it satisfies the markedly different characteristics
 analysis. 
 

 It is important to keep in mind that under the
 broadest reasonable interpretation (BRI) of the claims, a nature-based product
 limitation may encompass both eligible and ineligible products. For example, a
 claim to a “cloned giraffe” may have a BRI encompassing cloned giraffes with
 markedly different characteristics, as well as cloned giraffes that lack markedly
 different characteristics and thus are products of nature. Cf.
 Roslin, 750 F.3d at 1338-39, 110 USPQ2d at 1673 (applicant
 could not rely on unclaimed features to distinguish claimed mammals from donor
 mammals). 
 

 Such a claim recites a product of nature, and thus
 requires further analysis in Prong Two. If the claim is ultimately rejected as
 failing to encompass an inventive concept (Step 2B: NO), it is a best practice for
 the examiner to point out the broadest reasonable interpretation and recommend an
 amendment, if possible, that would narrow the claim to those embodiments that are
 not directed to products of nature, or that are otherwise eligible. 
 

 For claims that recite a nature-based product
 limitation (which may or may not be a product of nature exception) but which are
 directed to inventions that clearly do not seek to tie up any judicial exception,
 examiners should consider whether the streamlined eligibility analysis discussed
 in MPEP § 2106.06 is appropriate. In such cases, it would
 not be necessary to conduct a markedly different characteristics analysis. 
 

 

 
 2106.04(c) The Markedly Different Characteristics
 Analysis [R-07.2022]
 

 The markedly different characteristics analysis is
 part of Step 2A Prong One, because the courts use this analysis to identify product
 of nature exceptions. For example, Chakrabarty relied on a
 comparison of the claimed bacterium to naturally occurring bacteria when determining
 that the claimed bacterium was not a product of nature because it had “markedly
 different characteristics from any found in nature”. Diamond v.
 Chakrabarty, 447 U.S. 303, 310, 206 USPQ 193, 197 (1980). Similarly,
 Roslin relied on a comparison of the claimed sheep to naturally
 occurring sheep when determining that the claimed sheep was a product of nature
 because it “does not possess ‘markedly different characteristics from any [farm
 animals] found in nature.’” In re Roslin Institute (Edinburgh), 
 750 F.3d 1333, 1337, 110 USPQ2d 1668, 1671-72 (Fed. Cir. 2014) (quoting
 Chakrabarty, 447 U.S. at 310, 206 USPQ at 197 (alterations in
 original)).
 

 This section sets forth guidelines for performing
 the markedly different characteristics analysis, including information on when to
 perform the analysis, and how to perform the analysis. Examiners should consult these
 guidelines when performing an eligibility analysis of a claim that recites a
 nature-based product limitation. Nature-based products, as used herein, include both
 eligible and ineligible products and merely refer to the types of products subject to
 the markedly different characteristics analysis used to identify product of nature
 exceptions. 
 

 If the claim includes a nature-based product that has
 markedly different characteristics, then the claim does not recite a product of
 nature exception and is eligible (Step 2A: NO) at Pathway B unless the claim recites
 another exception (such as a law of nature or abstract idea, or a different natural
 phenomenon). For claims where the entire claim is a single nature-based product
 (e.g., a claim to “a Lactobacillus bacterium”), once a markedly
 different characteristic in that product is shown, no further analysis would be
 necessary for eligibility because no product of nature exception is recited (i.e.,
 Step 2B is not necessary because the answer to Step 2A is NO). For claims including
 limitations in addition to the nature-based product, examiners should consider
 whether the claim recites another exception and thus requires further eligibility
 analysis.
 

 If the claim includes a nature-based product that
 does not exhibit markedly different characteristics from its naturally occurring
 counterpart in its natural state, then the claim recites a “product of nature”
 exception, and requires further analysis in Step 2A Prong Two to determine whether
 the claim as a whole integrates the exception into a practical application. 
 

 I. WHEN TO PERFORM THE MARKEDLY
 DIFFERENT CHARACTERISTICS ANALYSIS Because a nature-based product can be claimed by
 itself ( e.g., “a Lactobacillus bacterium”)
 or as one or more limitations of a claim (e.g., “a probiotic composition
 comprising a mixture of Lactobacillus and milk in a
 container”), care should be taken not to overly extend the markedly different
 characteristics analysis to products that when viewed as a whole are not
 nature-based. Instead, the markedly different characteristics analysis should be
 applied only to the nature-based product limitations in the claim to determine
 whether the nature-based products are “product of nature” exceptions. 
 

 Examiners should keep in mind that if the
 nature-based product limitation is naturally occurring, there is no need to
 perform the markedly different characteristics analysis because the limitation is
 by definition directed to a naturally occurring product and thus falls under the
 product of nature exception. However, if the nature-based product limitation is
 not naturally occurring, for example due to some human intervention, then the
 markedly different characteristics analysis must be performed to determine whether
 the claimed product limitation is a product of nature exception. 
 

 A. Product Claims Where the claim is to a nature-based product by
 itself ( e.g., a claim to “a Lactobacillus 
 bacterium”), the markedly different characteristics analysis should be applied
 to the entire product. See, e.g., Chakrabarty, 447 U.S. at
 305, 309-10, 206 USPQ at 195, 197-98 (applying analysis to entire claimed
 “bacterium from the genus Pseudomonas containing therein at
 least two stable energy-generating plasmids, each of said plasmids providing a
 separate hydrocarbon degradative pathway”). 
 

 Where the claim is to a nature-based product
 produced by combining multiple components ( e.g., a claim to
 “a probiotic composition comprising a mixture of
 Lactobacillus and milk”), the markedly different
 characteristics analysis should be applied to the resultant nature-based
 combination, rather than its component parts. For instance, for the probiotic
 composition example, the mixture of Lactobacillus and milk
 should be analyzed for markedly different characteristics, rather than the
 Lactobacillus separately and the milk separately. See
 subsection II, below, for further guidance on the markedly different
 characteristic analysis.
 

 Where the claim is to a nature-based product
 in combination with non-nature based elements ( e.g., a claim
 to “a yogurt starter kit comprising Lactobacillus in a
 container with instructions for culturing Lactobacillus with
 milk to produce yogurt”), the markedly different characteristics analysis
 should be applied only to the nature-based product limitation. For instance,
 for the yogurt starter kit example, the Lactobacillus would
 be analyzed for markedly different characteristics. The container and
 instructions would not be subject to the markedly different characteristics
 analysis as they are not nature-based products, but would be evaluated as
 additional elements in Prong Two (and Step 2B if needed) if it is determined
 that the Lactobacillus does not have markedly different
 characteristics from any naturally occurring counterpart and thus is a product
 of nature exception. See, e.g., Funk Bros. Seed Co. v. Kalo Inoculant
 Co., 333 U.S. 127, 130, 76 USPQ 280, 281 (1948) (although claims
 7, 8, 13 and 14 recited an inoculant comprising a bacterial mixture and a
 powder base, only the bacterial mixture was analyzed). 
 

 B. Product-by-Process Claims For a product-by-process claim
 ( e.g., a claim to a cloned farm animal produced by a
 nuclear transfer cloning method), the analysis turns on whether the
 nature-based product in the claim has markedly different characteristics from
 its naturally occurring counterpart. See MPEP § 2113 
 for more information on product-by-process claims. 
 

 C. Process Claims For a process claim, the general rule is that
 the claim is not subject to the markedly different analysis for nature-based
 products used in the process. This is because the analysis of a process claim
 should focus on the active steps of the process rather than the products used
 in those steps. For example, when evaluating a claimed process of
 cryopreserving hepatocyte cells comprising performing density gradient
 fractionation to separate viable and non-viable hepatocytes, recovering the
 viable hepatocytes, and cryopreserving the recovered viable hepatocytes, the
 court did not subject the claim to the markedly different characteristics
 analysis for the nature-based products (the hepatocytes) used in the process.
 Rapid Litig. Mgmt. v. CellzDirect, Inc., 827 F.3d 1042,
 1049, 119 USPQ2d 1370, 1374 (Fed. Cir. 2016) (claims are directed to a process
 of creating a preparation of multi-cryopreserved hepatocytes, not to the
 preparation itself).
 

 However, in the limited situation where a
 process claim reciting a nature-based product is drafted in such a way that
 there is no difference in substance from a product claim, the claim is subject
 to the markedly different analysis for the recited nature-based product. These
 types of claims are drafted in a way that focuses on the product rather than
 the process steps. For example, consider a claim that recites, in its entirety,
 “a method of providing an apple.” Under the broadest reasonable interpretation,
 this claim is focused on the apple fruit itself, which is a nature-based
 product. Similarly, claims to detecting naturally occurring cell-free fetal DNA
 (cffDNA) in maternal blood were held to be directed to the cffDNA, because the
 “existence and location of cffDNA is a natural phenomenon [and thus]
 identifying its presence was merely claiming the natural phenomena itself.”
 Rapid Litig. Mgmt., 827 F.3d at 1048, 119 USPQ2d at 1374,
 (explaining the holding in Ariosa Diagnostics, Inc. v.
 Sequenom, 788 F.3d 1371, 115 USPQ2d 1152 (Fed. Cir. 2015)). 
 

 II. HOW TO PERFORM THE MARKEDLY
 DIFFERENT CHARACTERISTICS ANALYSIS The markedly different characteristics analysis
 compares the nature-based product limitation to its naturally occurring
 counterpart in its natural state. Markedly different characteristics can be
 expressed as the product’s structure, function, and/or other properties, and are
 evaluated based on what is recited in the claim on a case-by-case basis. If the
 analysis indicates that a nature-based product limitation does not exhibit
 markedly different characteristics, then that limitation is a product of nature
 exception. If the analysis indicates that a nature-based product limitation does
 have markedly different characteristics, then that limitation is not a product of
 nature exception. 
 

 This section sets forth guidelines for performing
 the markedly different characteristics analysis, including information on (a)
 selecting the appropriate naturally occurring counterpart(s) to the nature-based
 product limitation, (b) identifying appropriate characteristics for analysis, and
 (c) evaluating characteristics to determine whether they are “markedly different”. 
 

 A. Selecting The Appropriate
 Counterpart(s) Because the markedly different characteristics
 analysis compares the nature-based product limitation to its naturally
 occurring counterpart in its natural state, the first step in the analysis is
 to select the appropriate counterpart(s) to the nature-based product.
 

 When the nature-based product is derived from
 a naturally occurring thing, then the naturally occurring thing is the
 counterpart. For example, assume that applicant claims deoxyacid A, which is a
 chemical derivative of a naturally occurring chemical called acid A. Because
 the inventor created the claimed nature-based product (deoxyacid A) by
 modifying the naturally occurring acid A, the closest natural counterpart for
 deoxyacid A would be the natural product from which it was derived,
 i.e., acid A. See, e.g., Chakrabarty, 447 U.S. at 305 and n.1, 206 USPQ at 195 and
 n.1 (counterpart to genetically modified Pseudomonas 
 bacterium containing multiple plasmids is the naturally occurring unmodified
 Pseudomonas bacterium from which the claimed bacterium
 was created); Roslin, 750 F.3d at 1337, 110 USPQ2d at
 1671-72 (counterparts to cloned sheep are naturally occurring sheep such as the
 donor ewe from which the clone was created). 
 

 Although the selected counterpart should be in
 its natural state, examiners should take care not to confuse the counterpart
 with other material that may occur naturally with, or adjacent to, the
 counterpart. For example, assume that applicant claims a nucleic acid having a
 nucleotide sequence derived from naturally occurring gene B. Although gene B
 occurs in nature as part of a chromosome, the closest natural counterpart for
 the claimed nucleic acid is gene B, and not the whole chromosome. See,
 e.g., Ass’n for Molecular Pathology v. Myriad Genetics,
 Inc., 569 U.S. 576, 591-94, 106 USPQ2d 1972, 1979-81 (2013)
 (comparing isolated BRCA1 genes and BRCA1 cDNA molecules to naturally occurring
 BRCA1 gene); Roche Molecular System, Inc. v. CEPHEID, 905
 F.3d 1363, 1371, 128 USPQ2d 1221, 1227 (Fed. Cir. 2018) (comparing claimed
 primers to “their corresponding nucleotide sequences on the naturally occurring
 DNA”). Similarly, assume that applicant claims a single-stranded piece of DNA
 (a primer) having a nucleotide sequence derived from the sense strand of
 naturally occurring nucleic acid C. Although nucleic acid C occurs in nature as
 a double-stranded molecule having a sense and an antisense strand, the closest
 natural counterpart for the claimed nucleic acid is the sense strand of C only.
 See, e.g., University of Utah Research Foundation v. Ambry
 Genetics, 774 F.3d 755, 760, 113 USPQ2d 1241, 1241 (Fed. Cir.
 2014) (comparing single-stranded nucleic acid to the same strand found in
 nature, even though “single-stranded DNA cannot be found in the human body”). 
 

 When there are multiple counterparts to the
 nature-based product, the comparison should be made to the closest naturally
 occurring counterpart. For example, assume that the inventor creates a cloned
 sheep D by transferring nuclear DNA from a Finn-Dorset sheep into an egg cell
 (which contains mitochondrial DNA) from a Scottish Blackface sheep. Applicant
 then claims sheep D. Here, because sheep D was created via combining DNA from
 two different naturally occurring sheep of different breeds, there is no single
 closest natural counterpart. The examiner should therefore select the
 counterpart most closely related to sheep D based on the examiner’s expertise
 in the particular art. For the example discussed here, the closest counterparts
 might be naturally occurring Finn-Dorset or Scottish Blackface sheep, as
 opposed to sheep of a different breed such as Bighorn sheep. Cf.
 Roslin, 750 F.3d at 1337, 110 USPQ2d at 1671-72 (claimed sheep
 produced by nuclear transfer into an oocyte and subsequent manipulation of
 natural embryonic development processes was compared to naturally occurring
 sheep such as the donor ewe from which the nuclear material was obtained). When
 the nature-based product is a combination produced from multiple components,
 the closest counterpart may be the individual nature-based components of the
 combination. For example, assume that applicant claims an inoculant comprising
 a mixture of bacteria from different species, e.g., some
 bacteria of species E and some bacteria of species F. Because there is no
 counterpart mixture in nature, the closest counterparts to the claimed mixture
 are the individual components of the mixture, i.e., each
 naturally occurring species by itself. See, e.g., Funk
 Bros., 333 U.S. at 130, 76 USPQ at 281 (comparing claimed mixture
 of bacterial species to each species as it occurs in nature); Ambry
 Genetics, 774 F.3d at 760, 113 USPQ2d at 1244 (although claimed as
 a pair, individual primer molecules were compared to corresponding segments of
 naturally occurring gene sequence); In re Bhagat, 726 Fed.
 Appx. 772, 778-79 (Fed. Cir. 2018) (non-precedential) (comparing claimed
 mixture of lipids with particular lipid profile to “naturally occurring lipid
 profiles of walnut oil and olive oil”). See subsection II.C.
 

 If the claim is rejected as ineligible, it is a
 “best practice” for the examiner to identify the selected counterpart in the
 Office action if the record is not already clear. This practice assists the
 applicant in responding, and clarifies the record as to how the examiner is
 interpreting the claim. 
 

 B. Identifying Appropriate Characteristics For
 Analysis Because the markedly different characteristics
 analysis is based on comparing the characteristics of the claimed nature-based
 product and its counterpart, the second step in the analysis is to identify
 appropriate characteristics to compare. 
 

 Appropriate characteristics must be possessed
 by the claimed product, because it is the claim that must define the invention
 to be patented. Cf. Roslin, 750 F.3d at 1338, 110 USPQ2d at
 1673 (unclaimed characteristics could not contribute to eligibility). Examiners
 can identify the characteristics possessed by the claimed product by looking at
 what is recited in the claim language and encompassed within the broadest
 reasonable interpretation of the nature-based product. In some claims, a
 characteristic may be explicitly recited. For example, in a claim to
 “deoxyribose”, the recited chemical name informs those in the art of the
 structural characteristics of the product ( i.e., the “deoxy”
 prefix indicates that a hydroxyl group has been removed as compared to ribose).
 In other claims, the characteristic may be apparent from the broadest
 reasonable interpretation even though it is not explicitly recited in the
 claim. For example, in a claim to “isolated gene B,” the examiner would need to
 rely on the broadest reasonable interpretation of “isolated gene B” to
 determine what characteristics the isolated gene has, e.g., 
 what its nucleotide sequence is, and what, if any, protein it encodes.
 

 Appropriate characteristics can be expressed
 as the nature-based product’s structure, function, and/or other properties, and
 are evaluated on a case-by-case basis. Non-limiting examples of the types of
 characteristics considered by the courts when determining whether there is a
 marked difference include: 
 

 
 • Biological or pharmacological
 functions or activities; 
 

 • Chemical and physical properties; 

 • Phenotype, including functional and
 structural characteristics; and 
 

 • Structure and form, whether chemical,
 genetic or physical. 
 

 
 Examples of biological or pharmacological
 functions or activities include, but are not limited to:
 

 
 i. the protein-encoding information of a
 nucleic acid, Myriad, 569 U.S. at 590-91, 106 USPQ2d
 at 1979;
 

 ii. the ability of complementary nucleotide
 sequences to bind to each other, Ambry Genetics, 774
 F.3d at 760-61, 113 USPQ2d at 1244;
 

 iii. the properties and functions of bacteria
 such as the ability to infect certain leguminous plants, Funk
 Bros., 333 U.S. at 130-31, 76 USPQ2d at 281-82; 
 

 iv. the ability to degrade certain
 hydrocarbons, Diamond v. Chakrabarty, 447 U.S. at 310,
 206 USPQ2d at 195; and 
 

 v. the ability of vitamin C to prevent and
 treat scurvy, In re King, 107 F.2d 618, 27 CCPA 754,
 756-57, 43 USPQ 400, 401-402 (CCPA 1939). 
 

 
 Examples of chemical and physical properties
 include, but are not limited to: 
 

 
 i. the alkalinity of a chemical compound,
 Parke-Davis & Co. v. H.K. Mulford Co., 189 F.
 95, 103-04 (S.D.N.Y. 1911); and 
 

 ii. the ductility or malleability of metals,
 In re Marden, 47 F.2d 958, 959, 18 CCPA 1057, 1059,
 8 USPQ 347, 349 (CCPA 1931). 
 

 
 Examples of phenotypic characteristics include,
 but are not limited to: 
 

 
 i. functional and structural characteristics
 such as the shape, size, color, and behavior of an organism,
 Roslin, 750 F.3d at 1338, 110 USPQ2d at 1672. 
 

 
 Examples of structure and form include, but are
 not limited to: 
 

 
 i. physical structure or form such as the
 physical presence of plasmids in a bacterial cell,
 Chakrabarty, 447 U.S. at 305 and n.1, 206 USPQ2d at
 195 and n.1;
 

 ii. chemical structure and form such as a
 chemical being a “nonsalt” and a “crystalline substance”,
 Parke-Davis, 189 F. at 100, 103;
 

 iii. genetic structure such as the nucleotide
 sequence of DNA, Myriad, 569 U.S. at 590, 594-95, 106
 USPQ2d at 1979, 1981; and 
 

 iv. the genetic makeup (genotype) of a cell
 or organism, Roslin, 750 F.3d at 1338-39, 110 USPQ2d
 at 1672-73. 
 

 C. Evaluating Characteristics To Determine Whether They Are “Markedly
 Different” The final step in the markedly different
 characteristics analysis is to compare the characteristics of the claimed
 nature-based product to its naturally occurring counterpart in its natural
 state, in order to determine whether the characteristics of the claimed product
 are markedly different. The courts have emphasized that to show a marked
 difference, a characteristic must be changed as compared to nature, and cannot
 be an inherent or innate characteristic of the naturally occurring counterpart
 or an incidental change in a characteristic of the naturally occurring
 counterpart. Myriad, 569 U.S. at 580, 106 USPQ2d at 1974-75.
 Thus, in order to be markedly different, the inventor must have caused the
 claimed product to possess at least one characteristic that is different from
 that of the counterpart. 
 

 If there is no change in any characteristic,
 the claimed product lacks markedly different characteristics, and is a product
 of nature exception. If there is a change in at least one characteristic as
 compared to the counterpart, and the change came about or was produced by the
 inventor’s efforts or influences, then the change will generally be considered
 a markedly different characteristic such that the claimed product is not a
 product of nature exception. 
 

 1. Examples of Products Having Markedly Different
 Characteristics In Chakrabarty, the
 Supreme Court identified a claimed bacterium as a nature-based product
 having markedly different characteristics. This bacterium had a changed
 functional characteristic, i.e., it was able to degrade
 at least two different hydrocarbons as compared to naturally occurring
 Pseudomonas bacteria that can only degrade a single
 hydrocarbon. The claimed bacterium also had a different structural
 characteristic, i.e., it was genetically modified to
 include more plasmids than are found in a single naturally occurring
 Pseudomonas bacterium. The Supreme Court considered
 these changed characteristics to be “markedly different characteristics from
 any found in nature” due to the additional plasmids and resultant capacity
 for degrading multiple hydrocarbon components of oil. Therefore, the
 bacterium was eligible. Diamond v. Chakrabarty , 447 U.S.
 303, 310, 206 USPQ 193, 197 (1980). 
 

 In Myriad, the Supreme
 Court identified a claimed full-length complementary DNA (cDNA) of the BRCA1
 gene as a nature-based product having markedly different characteristics.
 This claimed cDNA had the same functional characteristics (i.e., it encoded
 the same protein) as the naturally occurring gene, but had a changed
 structural characteristic, i.e., a different nucleotide
 sequence containing only exons, as compared to the naturally occurring
 sequence containing both exons and introns. The Supreme Court concluded that
 the “cDNA retains the naturally occurring exons of DNA, but it is distinct
 from the DNA from which it was derived. As a result, [this] cDNA is not a
 ‘product of nature’” and is eligible. Myriad, 569 U.S. at
 595, 106 USPQ2d at 1981. 
 

 2. Examples of Products Lacking
 Markedly Different Characteristics In Myriad, the Supreme
 Court made clear that not all changes in characteristics will rise to the
 level of a marked difference, e.g., the incidental
 changes resulting from isolation of a gene sequence are not enough to make
 the isolated gene markedly different. Myriad, 569 U.S. at
 580, 106 USPQ2d at 1974-75. The patentee in Myriad had
 discovered the location of the BRCA1 and BRCA2 genes in the human genome,
 and isolated them, i.e., separated those specific genes
 from the rest of the chromosome on which they exist in nature. As a result
 of their isolation, the isolated genes had a different structural
 characteristic than the natural genes, i.e. , the natural
 genes had covalent bonds on their ends that connected them to the rest of
 the chromosome, but the isolated genes lacked these bonds. However, the
 claimed genes were otherwise structurally identical to the natural genes,
 e.g., they had the same genetic structure and
 nucleotide sequence as the BRCA genes in nature. The Supreme Court concluded
 that these isolated but otherwise unchanged genes were not eligible, because
 they were not different enough from what exists in nature to avoid
 improperly tying up the future use and study of the naturally occurring BRCA
 genes. See, e.g., Myriad, 569 U.S. at 585, 106 USPQ2d at
 1977 (“Myriad's patents would, if valid, give it the exclusive right to
 isolate an individual’s BRCA1 and BRCA2 genes … But isolation is necessary
 to conduct genetic testing”) and 569 U.S. at 593, 106 USPQ2d at 1980
 (describing how would-be infringers could not avoid the scope of Myriad’s
 claims). In sum, the claimed genes were different, but not markedly
 different, from their naturally occurring counterparts (the BRCA genes), and
 thus were product of nature exceptions. 
 

 In Ambry Genetics, the
 court identified claimed DNA fragments known as “primers” as products of
 nature, because they lacked markedly different characteristics.
 University of Utah Research Foundation v. Ambry Genetics
 Corp., 774 F.3d 755, 113 USPQ2d 1241 (Fed. Cir. 2014). The
 claimed primers were single-stranded pieces of DNA, each of which
 corresponded to a naturally occurring double-stranded DNA sequence in or
 near the BRCA genes. The patentee argued that these primers had markedly
 different structural characteristics from the natural DNA, because the
 primers were synthetically created and because “single-stranded DNA cannot
 be found in the human body”. The court disagreed, concluding that the
 primers’ structural characteristics were not markedly different than the
 corresponding strands of DNA in nature, because the primers and their
 counterparts had the same genetic structure and nucleotide sequence. 774
 F.3d at 760, 113 USPQ2d at 1243-44. The patentee also argued that the
 primers had a different function than when they are part of the DNA strand
 because when isolated as a primer, a primer can be used as a starting
 material for a DNA polymerization process. The court disagreed, because this
 ability to serve as a starting material is innate to DNA itself, and was not
 created or altered by the patentee: 
 

 
 In fact, the naturally occurring genetic
 sequences at issue here do not perform a significantly new function.
 Rather, the naturally occurring material is used to form the first step
 in a chain reaction--a function that is performed because the primer
 maintains the exact same nucleotide sequence as the relevant portion of
 the naturally occurring sequence. One of the primary functions of DNA’s
 structure in nature is that complementary nucleotide sequences bind to
 each other. It is this same function that is exploited here--the primer
 binds to its complementary nucleotide sequence. Thus, just as in nature,
 primers utilize the innate ability of DNA to bind to itself.
 

 
 Ambry Genetics, 774 F.3d at 760-61, 113 USPQ2d at 1244.
 In sum, because the characteristics of the claimed primers were innate to
 naturally occurring DNA, they lacked markedly different characteristics from
 nature and were thus product of nature exceptions. A similar result was
 reached in Marden, where the court held a claim to
 ductile vanadium ineligible, because the “ductility or malleability of
 vanadium is . . . one of its inherent characteristics and not a
 characteristic given to it by virtue of a new combination with other
 materials or which characteristic is brought about by some chemical reaction
 or agency which changes its inherent characteristics”. In re
 Marden, 47 F.2d 958, 959, 18 CCPA 1057, 1060, 8 USPQ 347, 349
 (CCPA 1931). 
 

 In Roslin, the court
 concluded that claimed clones of farm animals were products of nature,
 because they lacked markedly different characteristics from the counterpart
 farm animals found in nature. In re Roslin Institute
 (Edinburgh), 750 F.3d 1333, 1337, 110 USPQ2d 1668, 1671 (Fed.
 Cir. 2014). The inventor created its clones (which included the famous
 cloned sheep named Dolly) by transferring the genetic material of a donor
 into an oocyte (egg cell), letting the oocyte develop into an embryo, and
 then implanting the embryo into a surrogate animal where it developed into a
 baby animal. The applicant argued that the clones, including Dolly, were
 eligible because they were created via human ingenuity, and had phenotypic
 differences such as shape, size and behavior compared to their donors. The
 court was unpersuaded, explaining that the clones were exact genetic
 replicas of the donors and thus did not possess markedly different
 characteristics. 750 F.3d at 1337, 110 USPQ2d at 1671-72 (“Roslin’s chief
 innovation was the preservation of the donor DNA such that the clone is an
 exact copy of the mammal from which the somatic cell was taken. Such a copy
 is not eligible for patent protection.”). The court noted that the alleged
 phenotypic differences ( e.g., the fact that Dolly may
 have been taller or heavier than her donor) could not make the clones
 markedly different because these differences were not claimed. 750 F.3d at
 1338, 110 USPQ2d at 1672. See also Roche Molecular System, Inc. v.
 CEPHEID, 905 F.3d 1363, 1370, 128 USPQ2d 1221, 1226 (Fed. Cir.
 2018) (alleged structural differences between linear primers and their
 counterparts on a circular chromosome were neither claimed nor relevant to
 the eligibility inquiry).
 

 

 
 2106.04(d) Integration of a Judicial Exception Into A
 Practical Application [R-07.2022]
 

 The Supreme Court has long distinguished between
 principles themselves (which are not patent eligible) and the integration of those
 principles into practical applications (which are patent eligible). See,
 e.g., Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566
 U.S. 66, 80, 84, 101 USPQ2d 1961, 1968-69, 1970 (2012) (noting that the Court in
 Diamond v. Diehr found ‘‘the overall process patent eligible
 because of the way the additional steps of the process integrated the equation into
 the process as a whole,’’ but the Court in Gottschalk v. Benson 
 ‘‘held that simply implementing a mathematical principle on a physical machine,
 namely a computer, was not a patentable application of that principle’’). Similarly,
 in a growing body of decisions, the Federal Circuit has distinguished between claims
 that are ‘‘directed to’’ a judicial exception (which require further analysis to
 determine their eligibility) and those that are not (which are therefore patent
 eligible), e.g., claims that improve the functioning of a computer
 or other technology or technological field. See Diamond v. Diehr, 
 450 U.S. 175, 209 USPQ 1 (1981); Gottschalk v. Benson, 409 U.S.
 63, 175 USPQ 673 (1972). See, e.g., MPEP §
 2106.06(b) (summarizing Enfish, LLC v. Microsoft
 Corp., 822 F.3d 1327, 118 USPQ2d 1684 (Fed. Cir. 2016), McRO,
 Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 120 USPQ2d 1091
 (Fed. Cir. 2016), and other cases that were eligible as improvements to technology or
 computer functionality instead of being directed to abstract ideas).
 

 Accordingly, after determining that a claim recites a
 judicial exception in Step 2A Prong One, examiners should evaluate whether the claim
 as a whole integrates the recited judicial exception into a practical application of
 the exception in Step 2A Prong Two. A claim that integrates a judicial exception into
 a practical application will apply, rely on, or use the judicial exception in a
 manner that imposes a meaningful limit on the judicial exception, such that the claim
 is more than a drafting effort designed to monopolize the judicial exception. Whether
 or not a claim integrates a judicial exception into a practical application is
 evaluated using the considerations set forth in subsection I below, in accordance
 with the procedure described below in subsection II.
 

 In the context of the flowchart in
 MPEP §
 2106 , subsection III, Step 2A Prong Two determines
 whether:
 

 
 • The claim as a whole integrates the judicial
 exception into a practical application, in which case the claim is not directed
 to a judicial exception (Step 2A: NO) and is eligible at Pathway B. This
 concludes the eligibility analysis. 
 

 • The claim as a whole does not integrate the
 exception into a practical application, in which case the claim is directed to
 the judicial exception (Step 2A: YES), and requires further analysis under Step
 2B (where it may still be eligible if it amounts to an inventive concept). See
 MPEP § 2106.05 for discussion of Step 2B.
 

 I. RELEVANT CONSIDERATIONS FOR
 EVALUATING WHETHER ADDITIONAL ELEMENTS INTEGRATE A JUDICIAL EXCEPTION INTO A
 PRACTICAL APPLICATION The Supreme Court and Federal Circuit have
 identified a number of considerations as relevant to the evaluation of whether the
 claimed additional elements demonstrate that a claim is directed to
 patent-eligible subject matter. The list of considerations here is not intended to
 be exclusive or limiting. Additional elements can often be analyzed based on more
 than one type of consideration and the type of consideration is of no import to
 the eligibility analysis. Additional discussion of these considerations, and how
 they were applied in particular judicial decisions, is provided in
 MPEP § 2106.05(a) through (c) and MPEP §
 2106.05(e) through (h) .
 

 Limitations the courts have found indicative that
 an additional element (or combination of elements) may have integrated the
 exception into a practical application include:
 

 
 • An improvement in the functioning of a
 computer, or an improvement to other technology or technical field, as
 discussed in MPEP §§ 2106.04(d)(1) and
 2106.05(a) ;
 

 • Applying or using a judicial exception to
 effect a particular treatment or prophylaxis for a disease or medical
 condition, as discussed in MPEP §
 2106.04(d)(2) ;
 

 • Implementing a judicial exception with, or
 using a judicial exception in conjunction with, a particular machine or
 manufacture that is integral to the claim, as discussed in
 MPEP § 2106.05(b) ;
 

 • Effecting a transformation or reduction of
 a particular article to a different state or thing, as discussed in
 MPEP § 2106.05(c) ; and
 

 • Applying or using the judicial exception
 in some other meaningful way beyond generally linking the use of the
 judicial exception to a particular technological environment, such that the
 claim as a whole is more than a drafting effort designed to monopolize the
 exception, as discussed in MPEP §
 2106.05(e) .
 

 
 The courts have also identified limitations that
 did not integrate a judicial exception into a practical application:
 

 
 • Merely reciting the words “apply it” (or
 an equivalent) with the judicial exception, or merely including instructions
 to implement an abstract idea on a computer, or merely using a computer as a
 tool to perform an abstract idea, as discussed in MPEP §
 2106.05(f) ;
 

 • Adding insignificant extra-solution
 activity to the judicial exception, as discussed in MPEP §
 2106.05(g) ; and 
 

 • Generally linking the use of a judicial
 exception to a particular technological environment or field of use, as
 discussed in MPEP § 2106.05(h) .
 

 
 Step 2A Prong Two is similar to Step 2B in that
 both analyses involve evaluating a set of judicial considerations to determine if
 the claim is eligible. See MPEP §§ 2106.05(a) through
 (h) for the list of considerations that are evaluated
 at Step 2B. Although most of these considerations overlap (i.e., they are
 evaluated in both Step 2A Prong Two and Step 2B), Step 2A specifically excludes
 consideration of whether the additional elements represent well-understood,
 routine, conventional activity. Accordingly, in Step 2A Prong Two, examiners
 should ensure that they give weight to all additional elements, whether or not
 they are conventional, when evaluating whether a judicial exception has been
 integrated into a practical application. Additional elements that represent
 well-understood, routine, conventional activity may integrate a recited judicial
 exception into a practical application. 
 

 It is notable that mere physicality or tangibility
 of an additional element or elements is not a relevant consideration in Step 2A
 Prong Two. As the Supreme Court explained in Alice Corp., mere
 physical or tangible implementation of an exception does not guarantee
 eligibility. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S.
 208, 224, 110 USPQ2d 1976, 1983-84 (2014) (“The fact that a computer ‘necessarily
 exist[s] in the physical, rather than purely conceptual, realm,’ is beside the
 point”). See also Genetic Technologies Ltd. v. Merial LLC, 818
 F.3d 1369, 1377, 118 USPQ2d 1541, 1547 (Fed. Cir. 2016) (steps of DNA
 amplification and analysis are not “sufficient” to render claim 1 patent eligible
 merely because they are physical steps). Conversely, the presence of a
 non-physical or intangible additional element does not doom the claims, because
 tangibility is not necessary for eligibility under the
 Alice/Mayo test. Enfish, LLC v. Microsoft
 Corp., 822 F.3d 1327, 118 USPQ2d 1684 (Fed. Cir. 2016) (“that the
 improvement is not defined by reference to ‘physical’ components does not doom the
 claims”). See also McRO, Inc. v. Bandai Namco Games Am. Inc., 
 837 F.3d 1299, 1315, 120 USPQ2d 1091, 1102 (Fed. Cir. 2016), (holding that a
 process producing an intangible result (a sequence of synchronized, animated
 characters) was eligible because it improved an existing technological
 process).
 

 In addition, a specific way of achieving a result
 is not a stand-alone consideration in Step 2A Prong Two. However, the specificity
 of the claim limitations is relevant to the evaluation of several considerations
 including the use of a particular machine, particular transformation and whether
 the limitations are mere instructions to apply an exception. See
 MPEP §§ 2106.05(b) , 2106.05(c) , and 2106.05(f) . For example, in Parker v.
 Flook, 437 U.S. 584, 198 USPQ 193 (1978), the Supreme Court noted
 that the “patent application does not purport to explain how to select the
 appropriate margin of safety, the weighting factor, or any of the other variables”
 in the claimed mathematical formula, “[n]or does it purport to contain any
 disclosure relating to the chemical processes at work, the monitoring of process
 variables, or the means of setting off an alarm or adjusting an alarm system.” 437
 U.S. at 586, 198 USPQ at 195. The Court found this failure to explain any
 specifics of how to use the claimed formula informative when deciding that the
 additional elements in the claim were insignificant post-solution activity and
 thus not meaningful enough to render the claim eligible. 437 U.S. at 589-90, 198
 USPQ at 197.
 

 II. HOW TO EVALUATE WHETHER THE
 ADDITIONAL ELEMENTS INTEGRATE THE JUDICIAL EXCEPTION INTO A PRACTICAL
 APPLICATION The analysis under Step 2A Prong Two is the same
 for all claims reciting a judicial exception, whether the exception is an abstract
 idea, a law of nature, or a natural phenomenon (including products of nature).
 Examiners evaluate integration into a practical application by: (1) identifying
 whether there are any additional elements recited in the claim beyond the judicial
 exception(s); and (2) evaluating those additional elements individually and in
 combination to determine whether they integrate the exception into a practical
 application, using one or more of the considerations introduced in subsection I
 supra, and discussed in more detail in MPEP §§
 2106.04(d)(1) , 2106.04(d)(2) , 2106.05(a) through (c) and 2106.05(e) through (h) . 
 

 Many of these considerations overlap, and often
 more than one consideration is relevant to analysis of an additional element. Not
 all considerations will be relevant to every element, or every claim. Because the
 evaluation in Prong Two is not a weighing test, it is not important how the
 elements are characterized or how many considerations apply from the list. It is
 important to evaluate the significance of the additional elements relative to the
 invention, and to keep in mind the ultimate question of whether the exception is
 integrated into a practical application. If the claim as a whole integrates the
 judicial exception into a practical application based upon evaluation of these
 considerations, the additional limitations impose a meaningful limit on the
 judicial exception and the claim is eligible at Step 2A. 
 

 Examiners should examine each claim for
 eligibility separately, based on the particular elements recited therein. Claims
 should not be judged to automatically stand or fall with similar claims in an
 application. For instance, one claim may be ineligible because it is directed to a
 judicial exception without amounting to significantly more, but another claim
 dependent on the first may be eligible because it recites additional elements that
 do amount to significantly more, or that integrate the exception into a practical
 application.
 

 For more information on how to evaluate claims
 reciting multiple judicial exceptions, see MPEP §
 2106.04 , subsection II.B.
 

 III. EXAMPLES OF HOW THE OFFICE
 EVALUATES WHETHER THE CLAIM AS A WHOLE INTEGRATES THE JUDICIAL EXCEPTION INTO A
 PRACTICAL APPLICATION The Prong Two analysis considers the claim as a
 whole. That is, the limitations containing the judicial exception as well as the
 additional elements in the claim besides the judicial exception need to be
 evaluated together to determine whether the claim integrates the judicial
 exception into a practical application. Because a judicial exception alone is not
 eligible subject matter, if there are no additional claim elements besides the
 judicial exception, or if the additional claim elements merely recite another
 judicial exception, that is insufficient to integrate the judicial exception into
 a practical application. However, the way in which the additional elements use or
 interact with the exception may integrate it into a practical application.
 Accordingly, the additional limitations should not be evaluated in a vacuum,
 completely separate from the recited judicial exception. Instead, the analysis
 should take into consideration all the claim limitations and how those limitations
 interact and impact each other when evaluating whether the exception is integrated
 into a practical application. 
 

 Two examples of how the Office evaluates whether
 the claim as a whole integrates the recited judicial exception into a practical
 application are provided. In Solutran, Inc. v. Elavon, Inc., 
 931 F.3d 1161, 2019 USPQ2d 281076 (Fed. Cir. 2019), the claims were to methods for
 electronically processing paper checks, all of which contained limitations setting
 forth receiving merchant transaction data from a merchant, crediting a merchant’s
 account, and receiving and scanning paper checks after the merchant’s account is
 credited. In part one of the Alice/Mayo test, the Federal
 Circuit determined that the claims were directed to the abstract idea of crediting
 the merchant’s account before the paper check is scanned. The court first
 determined that the recited limitations of “crediting a merchant’s account as
 early as possible while electronically processing a check” is a “long-standing
 commercial practice” like in Alice and
 Bilski . 931 F.3d at 1167, 2019 USPQ2d 281076, at *5 (Fed.
 Cir. 2019). The Federal Circuit then continued with its analysis under part one of
 the Alice/Mayo test finding that the claims are not directed to
 an improvement in the functioning of a computer or an improvement to another
 technology. In particular, the court determined that the claims “did not improve
 the technical capture of information from a check to create a digital file or the
 technical step of electronically crediting a bank account” nor did the claims
 “improve how a check is scanned.” Id. This analysis is
 equivalent to the Office’s analysis of determining that the exception is not
 integrated into a practical application at Step 2A Prong Two, and thus that the
 claims are directed to the judicial exception (Step 2A: YES). 
 

 In Finjan Inc. v. Blue Coat Systems,
 Inc., 879 F.3d 1299, 125 USPQ2d 1282 (Fed. Cir. 2018), the claimed
 invention was a method of virus scanning that scans an application program,
 generates a security profile identifying any potentially suspicious code in the
 program, and links the security profile to the application program. 879 F.3d at
 1303-04, 125 USPQ2d at 1285-86. The Federal Circuit noted that the recited virus
 screening was an abstract idea, and that merely performing virus screening on a
 computer does not render the claim eligible. 879 F.3d at 1304, 125 USPQ2d at 1286.
 The court then continued with its analysis under part one of the
 Alice/Mayo test by reviewing the patent’s specification,
 which described the claimed security profile as identifying both hostile and
 potentially hostile operations. The court noted that the security profile thus
 enables the invention to protect the user against both previously unknown viruses
 and “obfuscated code,” as compared to traditional virus scanning, which only
 recognized the presence of previously-identified viruses. The security profile
 also enables more flexible virus filtering and greater user customization. 879
 F.3d at 1304, 125 USPQ2d at 1286. The court identified these benefits as improving
 computer functionality, and verified that the claims recite additional elements
 ( e.g., specific steps of using the security profile in a
 particular way) that reflect this improvement. Accordingly, the court held the
 claims eligible as not being directed to the recited abstract idea. 879 F.3d at
 1304-05, 125 USPQ2d at 1286-87. This analysis is equivalent to the Office’s
 analysis of determining that the additional elements integrate the judicial
 exception into a practical application at Step 2A Prong Two, and thus that the
 claims were not directed to the judicial exception (Step 2A: NO).
 

 
 2106.04(d)(1) Evaluating Improvements in the
 Functioning of a Computer, or an Improvement to Any Other Technology or Technical
 Field in Step 2A Prong Two [R-10.2019]
 

 A claim reciting a judicial exception is not
 directed to the judicial exception if it also recites additional elements
 demonstrating that the claim as a whole integrates the exception into a practical
 application. One way to demonstrate such integration is when the claimed invention
 improves the functioning of a computer or improves another technology or technical
 field. The application or use of the judicial exception in this manner
 meaningfully limits the claim by going beyond generally linking the use of the
 judicial exception to a particular technological environment, and thus transforms
 a claim into patent-eligible subject matter. Such claims are eligible at Step 2A
 because they are not “directed to” the recited judicial exception. 
 

 The courts have not provided an explicit test for
 this consideration, but have instead illustrated how it is evaluated in numerous
 decisions. These decisions, and a detailed explanation of how examiners should
 evaluate this consideration are provided in MPEP §
 2106.05(a) . In short, first the specification should be
 evaluated to determine if the disclosure provides sufficient details such that one
 of ordinary skill in the art would recognize the claimed invention as providing an
 improvement. The specification need not explicitly set forth the improvement, but
 it must describe the invention such that the improvement would be apparent to one
 of ordinary skill in the art. Conversely, if the specification explicitly sets
 forth an improvement but in a conclusory manner ( i.e., a bare
 assertion of an improvement without the detail necessary to be apparent to a
 person of ordinary skill in the art), the examiner should not determine the claim
 improves technology. Second, if the specification sets forth an improvement in
 technology, the claim must be evaluated to ensure that the claim itself reflects
 the disclosed improvement. That is, the claim includes the components or steps of
 the invention that provide the improvement described in the specification. The
 claim itself does not need to explicitly recite the improvement described in the
 specification ( e.g., “thereby increasing the bandwidth of the
 channel”).
 

 While the courts usually evaluate “improvements” as
 part of the “directed to” inquiry in part one of the Alice/Mayo 
 test (equivalent to Step 2A), they have also performed this evaluation in part two
 of the Alice/Mayo test (equivalent to Step 2B). See,
 e.g., BASCOM Global Internet v. AT&T Mobility LLC, 827
 F.3d 1341, 1349-50, 119 USPQ2d 1236, 1241-42 (Fed. Cir. 2016). However, the
 improvement analysis at Step 2A Prong Two differs in some respects from the
 improvements analysis at Step 2B. Specifically, the “improvements” analysis in
 Step 2A determines whether the claim pertains to an improvement to the functioning
 of a computer or to another technology without reference to what is
 well-understood, routine, conventional activity. That is, the claimed invention
 may integrate the judicial exception into a practical application by demonstrating
 that it improves the relevant existing technology although it may not be an
 improvement over well-understood, routine, conventional activity. It should be
 noted that while this consideration is often referred to in an abbreviated manner
 as the “improvements consideration,” the word “improvements” in the context of
 this consideration is limited to improvements to the functioning of a computer or
 any other technology/technical field, whether in Step 2A Prong Two or in Step
 2B.
 

 Examples of claims that improve technology and are
 not directed to a judicial exception include: Enfish, LLC v. Microsoft
 Corp., 822 F.3d 1327, 1339, 118 USPQ2d 1684, 1691-92 (Fed. Cir. 2016)
 (claims to a self-referential table for a computer database were directed to an
 improvement in computer capabilities and not directed to an abstract idea);
 McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299,
 1315, 120 USPQ2d 1091, 1102-03 (Fed. Cir. 2016) (claims to automatic lip
 synchronization and facial expression animation were directed to an improvement in
 computer-related technology and not directed to an abstract idea); Visual
 Memory LLC v. NVIDIA Corp., 867 F.3d 1253,1259-60, 123 USPQ2d 1712,
 1717 (Fed. Cir. 2017) (claims to an enhanced computer memory system were directed
 to an improvement in computer capabilities and not an abstract idea);
 Finjan Inc. v. Blue Coat Systems, Inc., 879 F.3d 1299, 125
 USPQ2d 1282 (Fed. Cir. 2018) (claims to virus scanning were found to be an
 improvement in computer technology and not directed to an abstract idea);
 SRI Int’l, Inc. v. Cisco Systems, Inc., 930 F.3d 1295, 1303
 (Fed. Cir. 2019) (claims to detecting suspicious activity by using network
 monitors and analyzing network packets were found to be an improvement in computer
 network technology and not directed to an abstract idea). Additional examples are
 provided in MPEP § 2106.05(a) .
 

 

 
 2106.04(d)(2) Particular Treatment and Prophylaxis in
 Step 2A Prong Two [R-07.2022]
 

 A claim reciting a judicial exception is not
 directed to the judicial exception if it also recites additional element(s)
 demonstrating that the claim as a whole integrates the exception into a practical
 application. One way to demonstrate such integration is when the additional
 elements apply or use the recited judicial exception to effect a particular
 treatment or prophylaxis for a disease or medical condition. The application or
 use of the judicial exception in this manner meaningfully limits the claim by
 going beyond generally linking the use of the judicial exception to a particular
 technological environment, and thus transforms a claim into patent-eligible
 subject matter. Such claims are eligible at Step 2A, because they are not
 “directed to” the recited judicial exception.
 

 The particular treatment or prophylaxis
 consideration originated as part of the other meaningful limitations consideration
 discussed in MPEP § 2106.05(e) and shares the
 same legal basis in Supreme Court jurisprudence as that consideration. However,
 recent jurisprudence has provided additional guidance that is especially relevant
 to only a subset of claims, thus warranting the elevation of the particular
 treatment or prophylaxis consideration to become a stand-alone consideration in
 the Step 2A Prong Two analysis. Vanda Pharm. Inc. v. West-Ward Pharm.
 Int’l Ltd., 887 F.3d 1117, 126 USPQ2d 1266 (Fed. Cir. 2018). The
 claims in Vanda recited a method of treating a patient having
 schizophrenia with iloperidone, a drug known to cause QTc prolongation (a
 disruption of the heart’s normal rhythm that can lead to serious health problems)
 in patients having a particular genotype associated with poor drug metabolism. 887
 F.3d at 1121, 126 USPQ2d at 1269-70. In particular, the claims recited steps of:
 (1) performing a genotyping assay to determine if a patient has a genotype
 associated with poor drug metabolism; and (2) administering iloperidone to the
 patient in a dose range that depends on the patient’s genotype.
 Id. Although Vanda’s claims recited a law
 of nature (the naturally occurring relationship between the patient’s genotype and
 the risk of QTc prolongation) like the claims in Mayo Collaborative
 Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 101 USPQ2d 1961
 (2012), the Federal Circuit distinguished them from the Mayo 
 claims based on the differences in the administration steps. In particular, the
 court explained that Mayo’s step of administering a drug to a
 patient was performed in order to gather data about the recited laws of nature,
 and this step was thus ancillary to the overall diagnostic focus of the claims.
 887 F.3d at 1134-35, 126 USPQ2d at 1280. In contrast, Vanda’s 
 claims used the recited law of nature to more safely treat the patients with the
 drug, thereby reducing the patient’s risk of QTc prolongation. 887 F.3d at 1135,
 126 USPQ2d at 1280. Accordingly, the court held Vanda’s claims
 eligible at the first part of the Alice/Mayo test (Step 2A)
 because the claims were not “directed to” the recited judicial exception. 887 F.3d
 at 1136, 126 USPQ2d at 1281.
 

 Examples of “treatment” and prophylaxis”
 limitations encompass limitations that treat or prevent a disease or medical
 condition, including, e.g., acupuncture, administration of medication, dialysis,
 organ transplants, phototherapy, physiotherapy, radiation therapy, surgery, and
 the like. For example, an immunization step that integrates an abstract idea into
 a specific process of immunizing that lowers the risk that immunized patients will
 later develop chronic immune-mediated diseases is considered to be a particular
 prophylaxis limitation that practically applies the abstract idea. See,
 e.g., Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d
 1057, 1066–68, 100 USPQ2d 1492, 1500-01 (Fed. Cir. 2011). 
 

 Examiners should keep in mind that in order to
 qualify as a “treatment” or “prophylaxis” limitation for purposes of this
 consideration, the claim limitation in question must affirmatively recite an
 action that effects a particular treatment or prophylaxis for a disease or medical
 condition. An example of such a limitation is a step of “administering amazonic
 acid to a patient” or a step of “administering a course of plasmapheresis to a
 patient.” If the limitation does not actually provide a treatment or prophylaxis,
 e.g., it is merely an intended use of the claimed invention
 or a field of use limitation, then it cannot integrate a judicial exception under
 the “treatment or prophylaxis” consideration. For example, a step of “prescribing
 a topical steroid to a patient with eczema” is not a positive limitation because
 it does not require that the steroid actually be used by or on the patient, and a
 recitation that a claimed product is a “pharmaceutical composition” or that a
 “feed dispenser is operable to dispense a mineral supplement” are not affirmative
 limitations because they are merely indicating how the claimed invention might be
 used. 
 

 When determining whether a claim applies or uses a
 recited judicial exception to effect a particular treatment or prophylaxis for a
 disease or medical condition, the following factors are relevant.
 

 
 a. The Particularity Or Generality Of The
 Treatment Or Prophylaxis 

 The treatment or prophylaxis limitation must
 be “particular,” i.e., specifically identified so that it
 does not encompass all applications of the judicial exception(s). For
 example, consider a claim that recites mentally analyzing information to
 identify if a patient has a genotype associated with poor metabolism of beta
 blocker medications. This falls within the mental process grouping of
 abstract ideas enumerated in MPEP §
 2106.04(a) . The claim also recites “administering
 a lower than normal dosage of a beta blocker medication to a patient
 identified as having the poor metabolizer genotype.” This administration
 step is particular, and it integrates the mental analysis step into a
 practical application. Conversely, consider a claim that recites the same
 abstract idea and “administering a suitable medication to a patient.” This
 administration step is not particular, and is instead merely instructions to
 “apply” the exception in a generic way. Thus, the administration step does
 not integrate the mental analysis step into a practical application. 
 Examiners may find it helpful to evaluate
 other considerations such as the mere instructions to apply an exception
 consideration (see MPEP § 2106.05(f) ), and the
 field of use and technological environment consideration (see
 MPEP § 2106.05(h) ), when
 making a determination of whether a treatment or prophylaxis limitation is
 particular or general.
 

 

 b. Whether The Limitation(s) Have More
 Than A Nominal Or Insignificant Relationship To The
 Exception(s) 

 The treatment or prophylaxis limitation must
 have more than a nominal or insignificant relationship to the exception(s).
 For example, consider a claim that recites a natural correlation (law of
 nature) between blood glucose levels over 250 mg/dl and the risk of
 developing ketoacidosis (a life-threatening medical condition). The claim
 also recites "treating a patient having a blood glucose level over 250 mg/dl
 with insulin”. Insulin acts to lower blood glucose levels, and administering
 insulin to a patient will reduce the patient’s blood glucose level, thereby
 lowering the risk that the patient will develop ketoacidosis. Thus, in the
 context of this claim, the administration step is significantly related to
 the recited correlation between high blood glucose levels and the risk of
 ketoacidosis. Because insulin is also a “particular” treatment, this
 administration step integrates the law of nature into a practical
 application. Alternatively, consider a claim that recites the same law of
 nature and also recites “treating a patient having a blood glucose level
 over 250 mg/dl with aspirin.” Aspirin is not known in the art as a treatment
 for ketoacidosis or diabetes, although some patients with diabetes may be on
 aspirin therapy for other medical reasons ( e.g., to
 control pain or inflammation, or to prevent blood clots). In the context of
 this claim and the recited correlation between high blood glucose levels and
 the risk of ketoacidosis, administration of aspirin has at best a nominal
 connection to the law of nature, because aspirin does not treat or prevent
 ketoacidosis. This step therefore does not apply or use the exception in any
 meaningful way. Thus, this step of administering aspirin does not integrate
 the law of nature into a practical application.
 Examiners may find it helpful to evaluate
 other considerations such as the insignificant extra-solution activity
 consideration (see MPEP § 2106.05(g) ), and the
 field of use and technological environment consideration (see
 MPEP § 2106.05(h) ), when
 making a determination of whether a treatment or prophylaxis limitation has
 more than a nominal or insignificant relationship to the exception(s).
 

 

 c. Whether The Limitation(s) Are Merely
 Extra-Solution Activity Or A Field Of Use 

 The treatment or prophylaxis limitation must
 impose meaningful limits on the judicial exception, and cannot be
 extra-solution activity or a field-of-use. For example, consider a claim
 that recites (a) administering rabies and feline leukemia vaccines to a
 first group of domestic cats in accordance with different vaccination
 schedules, and (b) analyzing information about the vaccination schedules and
 whether the cats later developed chronic immune-mediated disorders to
 determine a lowest-risk vaccination schedule. Step (b) falls within the
 mental process grouping of abstract ideas enumerated in
 MPEP § 2106.04(a) . While
 step (a) administers vaccines to the cats, this administration is performed
 in order to gather data for the mental analysis step, and is a necessary
 precursor for all uses of the recited exception. It is thus extra-solution
 activity, and does not integrate the judicial exception into a practical
 application. Conversely, consider a claim reciting the same steps (a) and
 (b), but also reciting step (c) “vaccinating a second group of domestic cats
 in accordance with the lowest-risk vaccination schedule.” Step (c) applies
 the exception, in that the information from the mental analysis in step (b)
 is used to alter the order and timing of the vaccinations so that the second
 group of cats has a lower risk of developing chronic immune-mediated
 disorders. Step (c) thus integrates the abstract idea into a practical
 application.
 Examiners may find it helpful to evaluate
 other considerations such as the insignificant extra-solution activity
 consideration (see MPEP § 2106.05(g) ), and the
 field of use and technological environment consideration (see
 MPEP § 2106.05(h) ), when
 making a determination of whether a treatment or prophylaxis limitation is
 merely extra-solution activity or a field of use. 
 

 

 
 

 

 

 
 2106.05 Eligibility Step 2B: Whether a Claim Amounts to
 Significantly More [R-07.2022]
 
 I. THE SEARCH FOR AN INVENTIVE
 CONCEPT The second part of the Alice/Mayo 
 test is often referred to as a search for an inventive concept. Alice Corp.
 Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 217, 110 USPQ2d 1976, 1981
 (2014) (citing Mayo Collaborative Servs. v. Prometheus Labs.,
 Inc., 566 U.S. 66, 71-72, 101 USPQ2d 1961, 1966 (2012)). 
 

 An inventive concept “cannot be furnished by the
 unpatentable law of nature (or natural phenomenon or abstract idea) itself.”
 Genetic Techs. Ltd. v. Merial LLC, 818 F.3d 1369, 1376, 118
 USPQ2d 1541, 1546 (Fed. Cir. 2016). See also Alice Corp., 573 U.S.
 at 21-18, 110 USPQ2d at 1981 (citing Mayo, 566 U.S. at 78, 101
 USPQ2d at 1968 (after determining that a claim is directed to a judicial exception,
 “we then ask, ‘ [w]hat else is there in the claims before us?”) (emphasis
 added)); RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327,
 122 USPQ2d 1377 (Fed. Cir. 2017) (“Adding one abstract idea (math) to another
 abstract idea (encoding and decoding) does not render the claim non-abstract”).
 Instead, an “inventive concept” is furnished by an element or combination of elements
 that is recited in the claim in addition to (beyond) the judicial exception, and is
 sufficient to ensure that the claim as a whole amounts to significantly more than the
 judicial exception itself. Alice Corp., 573 U.S. at 27-18, 110
 USPQ2d at 1981 (citing Mayo, 566 U.S. at 72-73, 101 USPQ2d at
 1966). 
 

 Evaluating additional elements to determine whether
 they amount to an inventive concept requires considering them both individually and
 in combination to ensure that they amount to significantly more than the judicial
 exception itself. Because this approach considers all claim elements, the Supreme
 Court has noted that “it is consistent with the general rule that patent claims ‘must
 be considered as a whole.’” Alice Corp., 573 U.S. at 218 n.3, 110
 USPQ2d at 1981 (quoting Diamond v. Diehr, 450 U.S. 175, 188, 209
 USPQ 1, 8-9 (1981)). Consideration of the elements in combination is particularly
 important, because even if an additional element does not amount to significantly
 more on its own, it can still amount to significantly more when considered in
 combination with the other elements of the claim. See, e.g., Rapid Litig.
 Mgmt. v. CellzDirect, 827 F.3d 1042, 1051, 119 USPQ2d 1370, 1375 (Fed.
 Cir. 2016) (process reciting combination of individually well-known freezing and
 thawing steps was “far from routine and conventional” and thus eligible);
 BASCOM Global Internet Servs. v. AT&T Mobility LLC, 827
 F.3d 1341, 1350, 119 USPQ2d 1236, 1242 (Fed. Cir. 2016) (inventive concept may be
 found in the non-conventional and non-generic arrangement of components that are
 individually well-known and conventional). 
 

 Although the courts often evaluate considerations such
 as the conventionality of an additional element in the eligibility analysis, the
 search for an inventive concept should not be confused with a novelty or
 non-obviousness determination. See Mayo, 566 U.S. at 91, 101
 USPQ2d at 1973 (rejecting “the Government’s invitation to substitute
 §§
 102 , 103 , and 112 
 inquiries for the better established inquiry under § 101 ”). As
 made clear by the courts, the “‘novelty’ of any element or steps in a process, or
 even of the process itself, is of no relevance in
 determining whether the subject matter of a claim falls within the § 101 
 categories of possibly patentable subject matter.” Intellectual Ventures I
 v. Symantec Corp., 838 F.3d 1307, 1315, 120 USPQ2d 1353, 1358 (Fed. Cir.
 2016) (quoting Diamond v. Diehr, 450 U.S. at 188–89, 209 USPQ at
 9). See also Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d
 1138, 1151, 120 USPQ2d 1473, 1483 (Fed. Cir. 2016) (“a claim for a
 new abstract idea is still an abstract idea.
 The search for a §
 101 inventive concept is thus distinct from demonstrating
 §
 102 novelty.”). In addition, the search for an inventive
 concept is different from an obviousness analysis under 35 U.S.C.
 103 . See, e.g., BASCOM Global Internet v. AT&T
 Mobility LLC, 827 F.3d 1341, 1350, 119 USPQ2d 1236, 1242 (Fed. Cir.
 2016) (“The inventive concept inquiry requires more than recognizing that each claim
 element, by itself, was known in the art. . . . [A]n inventive concept can be found
 in the non-conventional and non-generic arrangement of known, conventional pieces.”).
 Specifically, lack of novelty under 35 U.S.C. 102 or obviousness
 under 35
 U.S.C. 103 of a claimed invention does not necessarily indicate
 that additional elements are well-understood, routine, conventional elements. Because
 they are separate and distinct requirements from eligibility, patentability of the
 claimed invention under 35 U.S.C. 102 and
 103 with respect to the prior art is neither required for, nor
 a guarantee of, patent eligibility under 35 U.S.C. 101 . The distinction
 between eligibility (under 35 U.S.C. 101 ) and patentability
 over the art (under 35 U.S.C. 102 and/or
 103 ) is further discussed in MPEP §
 2106.05(d) . 
 

 A. Relevant Considerations For Evaluating Whether Additional Elements
 Amount To An Inventive Concept The Supreme Court has identified a number of
 considerations as relevant to the evaluation of whether the claimed additional
 elements amount to an inventive concept. The list of considerations here is not
 intended to be exclusive or limiting. Additional elements can often be analyzed
 based on more than one type of consideration and the type of consideration is of
 no import to the eligibility analysis. Additional discussion of these
 considerations, and how they were applied in particular judicial decisions, is
 provided in in MPEP § 2106.05(a) through (h) . 
 

 Limitations that the courts have found to qualify
 as “significantly more” when recited in a claim with a judicial exception include: 
 

 
 i. Improvements to the functioning of a
 computer, e.g., a modification of conventional Internet
 hyperlink protocol to dynamically produce a dual-source hybrid webpage, as
 discussed in DDR Holdings, LLC v. Hotels.com, L.P., 773
 F.3d 1245, 1258-59, 113 USPQ2d 1097, 1106-07 (Fed. Cir. 2014) (see
 MPEP § 2106.05(a) );
 

 ii. Improvements to any other technology or
 technical field, e.g., a modification of conventional
 rubber-molding processes to utilize a thermocouple inside the mold to
 constantly monitor the temperature and thus reduce under- and over-curing
 problems common in the art, as discussed in Diamond v.
 Diehr, 450 U.S. 175, 191-92, 209 USPQ 1, 10 (1981) (see
 MPEP § 2106.05(a) ); 
 

 iii. Applying the judicial exception with, or by
 use of, a particular machine, e.g., a Fourdrinier machine
 (which is understood in the art to have a specific structure comprising a
 headbox, a paper-making wire, and a series of rolls) that is arranged in a
 particular way to optimize the speed of the machine while maintaining
 quality of the formed paper web, as discussed in Eibel Process Co.
 v. Minn. & Ont. Paper Co., 261 U.S. 45, 64-65 (1923) (see
 MPEP § 2106.05(b) );
 

 iv. Effecting a transformation or reduction of a
 particular article to a different state or thing, e.g., a
 process that transforms raw, uncured synthetic rubber into precision-molded
 synthetic rubber products, as discussed in Diehr, 450
 U.S. at 184, 209 USPQ at 21 (see MPEP §
 2106.05(c) );
 

 v. Adding a specific limitation other than what
 is well-understood, routine, conventional activity in the field, or adding
 unconventional steps that confine the claim to a particular useful
 application, e.g., a non-conventional and non-generic
 arrangement of various computer components for filtering Internet content,
 as discussed in BASCOM Global Internet v. AT&T Mobility
 LLC, 827 F.3d 1341, 1350-51, 119 USPQ2d 1236, 1243 (Fed. Cir.
 2016) (see MPEP § 2106.05(d) ); or
 

 vi. Other meaningful limitations beyond
 generally linking the use of the judicial exception to a particular
 technological environment, e.g., an immunization step
 that integrates an abstract idea of data comparison into a specific process
 of immunizing that lowers the risk that immunized patients will later
 develop chronic immune-mediated diseases, as discussed in Classen
 Immunotherapies Inc. v. Biogen IDEC, 659 F.3d 1057, 1066-68,
 100 USPQ2d 1492, 1499-1502 (Fed. Cir. 2011) (see MPEP §
 2106.05(e) ).
 

 
 Limitations that the courts have found not to be
 enough to qualify as “significantly more” when recited in a claim with a judicial
 exception include: 
 

 
 i. Adding the words “apply it” (or an
 equivalent) with the judicial exception, or mere instructions to implement
 an abstract idea on a computer, e.g., a limitation
 indicating that a particular function such as creating and maintaining
 electronic records is performed by a computer, as discussed in
 Alice Corp., 573 U.S. at 225-26, 110 USPQ2d at 1984
 (see MPEP § 2106.05(f) );
 

 ii. Simply appending well-understood, routine,
 conventional activities previously known to the industry, specified at a
 high level of generality, to the judicial exception,
 e.g., a claim to an abstract idea requiring no more
 than a generic computer to perform generic computer functions that are
 well-understood, routine and conventional activities previously known to the
 industry, as discussed in Alice Corp., 573 U.S. at 225,
 110 USPQ2d at 1984 (see MPEP §
 2106.05(d) ); 
 

 iii. Adding insignificant extra-solution activity
 to the judicial exception, e.g., mere data gathering in
 conjunction with a law of nature or abstract idea such as a step of
 obtaining information about credit card transactions so that the information
 can be analyzed by an abstract mental process, as discussed in
 CyberSource v. Retail Decisions, Inc., 654 F.3d 1366,
 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011) (see MPEP §
 2106.05(g) ); or
 

 iv. Generally linking the use of the judicial
 exception to a particular technological environment or field of use,
 e.g., a claim describing how the abstract idea of
 hedging could be used in the commodities and energy markets, as discussed in
 Bilski v. Kappos, 561 U.S. 593, 595, 95 USPQ2d 1001,
 1010 (2010) or a claim limiting the use of a mathematical formula to the
 petrochemical and oil-refining fields, as discussed in Parker v.
 Flook, 437 U.S. 584, 588-90, 198 USPQ 193, 197-98 (1978)
 ( MPEP § 2106.05(h) ). 
 

 
 It is notable that mere physicality or tangibility
 of an additional element or elements is not a relevant consideration in Step 2B.
 As the Supreme Court explained in Alice Corp., mere physical or
 tangible implementation of an exception is not in itself an inventive concept and
 does not guarantee eligibility: 
 

 
 The fact that a computer “necessarily exist[s]
 in the physical, rather than purely conceptual, realm,” is beside the point.
 There is no dispute that a computer is a tangible system (in § 101 
 terms, a “machine”), or that many computer-implemented claims are formally
 addressed to patent-eligible subject matter. But if that were the end of the
 §
 101 inquiry, an applicant could claim any principle of
 the physical or social sciences by reciting a computer system configured to
 implement the relevant concept. Such a result would make the determination of
 patent eligibility “depend simply on the draftsman’s art,” Flook,
 supra, at 593, 98 S. Ct. 2522, 57 L. Ed. 2d 451, thereby
 eviscerating the rule that “‘[l]aws of nature, natural phenomena, and abstract
 ideas are not patentable,’” Myriad, 133 S. Ct. 1289, 186 L.
 Ed. 2d 124, 133). 
 

 
 Alice Corp., 573 U.S. at 224,
 110 USPQ2d at 1983-84 (alterations in original). See also Genetic
 Technologies Ltd. v. Merial LLC, 818 F.3d 1369, 1377, 118 USPQ2d
 1541, 1547 (Fed. Cir. 2016) (steps of DNA amplification and analysis “do not,
 individually or in combination, provide sufficient inventive concept to render
 claim 1 patent eligible” merely because they are physical steps). Conversely, the
 presence of a non-physical or intangible additional element does not doom the
 claims, because tangibility is not necessary for eligibility under the
 Alice/Mayo test. Enfish, LLC v. Microsoft
 Corp., 822 F.3d 1327, 118 USPQ2d 1684 (Fed. Cir. 2016) (“that the
 improvement is not defined by reference to ‘physical’ components does not doom the
 claims”). See also McRO, Inc. v. Bandai Namco Games Am. Inc., 
 837 F.3d 1299, 1315, 120 USPQ2d 1091, 1102 (Fed. Cir. 2016), (holding that a
 process producing an intangible result (a sequence of synchronized, animated
 characters) was eligible because it improved an existing technological process).
 
 

 B. Examples Of How Courts Conduct The Search For An Inventive
 Concept Alice Corp. provides an example
 of how courts conduct the significantly more analysis. In this case, the Supreme
 Court analyzed claims to computer systems, computer readable media, and
 computer-implemented methods, all of which described a scheme for mitigating
 “settlement risk,” which is the risk that only one party to an agreed-upon
 financial exchange will satisfy its obligation. In part one of the
 Alice/Mayo test, the Court determined that the claims were
 directed to the abstract idea of mitigating settlement risk. Alice
 Corp., 573 U.S. at 221, 110 USPQ2d at 1982. The Court then walked
 through part two of the Alice/Mayo test, in which:
 

 
 • The Court identified the additional
 elements in the claim, e.g., by noting that the method
 claims recited steps of using a computer to “create electronic records,
 track multiple transactions, and issue simultaneous instructions”, and that
 the product claims recited hardware such as a “data processing system” with
 a “communications controller” and a “data storage unit” (573 U.S. at 224-26,
 110 USPQ2d at 1984-85); 
 

 • The Court considered the additional
 elements individually, noting that all the computer functions were
 “‘well-understood, routine, conventional activit[ies]’ previously known to
 the industry," each step “does no more than require a generic computer to
 perform generic computer functions”, and the recited hardware was “purely
 functional and generic” (573 U.S. at 225-26, 110 USPQ2d at 1984-85); and
 
 

 • The Court considered the additional
 elements “as an ordered combination,” and determined that “the computer
 components … ‘[a]dd nothing … that is not already present when the steps are
 considered separately’” and simply recite intermediated settlement as
 performed by a generic computer.” 573 U.S. at 225 (citing
 Mayo, 566 U.S. at 79, 101 USPQ2d at 1972). 
 

 
 Based on this analysis, the Court concluded that
 the claims amounted to “‘nothing significantly more’ than an instruction to apply
 the abstract idea of intermediated settlement using some unspecified, generic
 computer”, and therefore held the claims ineligible because they were directed to
 a judicial exception and failed the second part of the
 Alice/Mayo test. Alice Corp., 573 U.S. at
 225-27, 110 USPQ2d at 1984. 
 

 BASCOM provides another example
 of how courts conduct the significantly more analysis, and of the critical
 importance of considering the additional elements in combination. In this case,
 the Federal Circuit vacated a judgment of ineligibility because the district court
 failed to properly perform the second step of the Alice/Mayo 
 test when analyzing a claimed system for filtering content retrieved from an
 Internet computer network. BASCOM Global Internet v. AT&T Mobility
 LLC, 827 F.3d 1341, 119 USPQ2d 1236 (Fed. Cir. 2016). The Federal
 Circuit agreed with the district court that the claims were directed to the
 abstract idea of filtering Internet content, and then walked through the district
 court’s analysis in part two of the Alice/Mayo test, noting
 that: 
 

 
 • The district court properly identified
 the additional elements in the claims, such as a “local client computer,”
 “remote ISP server,” “Internet computer network,” and “controlled access
 network accounts” (827 F.3d at 1349, 119 USPQ2d at 1242); 
 

 • The district court properly considered the
 additional elements individually, for example by consulting the
 specification, which described each of the additional elements as
 “well-known generic computer components” (827 F.3d at 1349, 119 USPQ2d at
 1242); and 
 

 • The district court should have considered
 the additional elements in combination, because the “inventive concept
 inquiry requires more than recognizing that each claim element, by itself,
 was known in the art” (827 F.3d at 1350, 119 USPQ2d at 1242). 
 

 
 Based on this analysis, the Federal Circuit
 concluded that the district court erred by failing to recognize that when
 combined, an inventive concept may be found in the non-conventional and
 non-generic arrangement of the additional elements, i.e., the installation of a
 filtering tool at a specific location, remote from the end-users, with
 customizable filtering features specific to each end user. 827 F.3d at 1350, 119
 USPQ2d at 1242. 
 

 II. ELIGIBILITY STEP 2B: WHETHER THE
 ADDITIONAL ELEMENTS CONTRIBUTE AN “INVENTIVE CONCEPT” As described in MPEP § 2106 ,
 subsection III, Step 2B of the Office’s eligibility analysis is the second part of
 the Alice/Mayo test, i.e., the Supreme Court’s
 “framework for distinguishing patents that claim laws of nature, natural phenomena,
 and abstract ideas from those that claim patent-eligible applications of those
 concepts.” Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208,
 217, 110 USPQ2d 1976, 1981 (2014) (citing Mayo, 566 U.S. 66, 101
 USPQ2d 1961 (2012)). Like the other steps in the eligibility analysis, evaluation of
 this step should be made after determining what the inventor has invented by
 reviewing the entire application disclosure and construing the claims in accordance
 with their broadest reasonable interpretation. See MPEP § 2106 ,
 subsection II for more information about the importance of understanding what has
 been invented, and MPEP § 2111 for more information about the broadest
 reasonable interpretation. 
 

 Step 2B asks: Does the claim recite additional
 elements that amount to significantly more than the judicial exception? Examiners
 should answer this question by first identifying whether there are any additional
 elements (features/limitations/steps) recited in the claim beyond the judicial
 exception(s), and then evaluating those additional elements individually
 and in combination to determine whether
 they contribute an inventive concept ( i.e., amount to
 significantly more than the judicial exception(s)). 
 

 This evaluation is made with respect to the
 considerations that the Supreme Court has identified as relevant to the eligibility
 analysis, which are introduced generally in Part I.A of this section, and discussed
 in detail in MPEP § 2106.05(a) through (h) . Many
 of these considerations overlap, and often more than one consideration is relevant to
 analysis of an additional element. Not all considerations will be relevant to every
 element, or every claim. Because the evaluation in Step 2B is not a weighing test, it
 is not important how the elements are characterized or how many considerations apply
 from this list. It is important to evaluate the significance of the additional
 elements relative to the invention, and to keep in mind the ultimate question of
 whether the additional elements encompass an inventive concept. 
 

 Although the conclusion of whether a claim is
 eligible at Step 2B requires that all relevant considerations be evaluated, most of
 these considerations were already evaluated in Step 2A Prong Two. Thus, in Step 2B,
 examiners should:
 

 
 • Carry over their identification of the
 additional element(s) in the claim from Step 2A Prong Two;
 

 • Carry over their conclusions from Step 2A
 Prong Two on the considerations discussed in MPEP §§ 2106.05(a) -
 (c), (e) (f) and (h) :
 

 • Re-evaluate any additional element or
 combination of elements that was considered to be insignificant extra-solution
 activity per MPEP § 2106.05(g) , because if
 such re-evaluation finds that the element is unconventional or otherwise more
 than what is well-understood, routine, conventional activity in the field, this
 finding may indicate that the additional element is no longer considered to be
 insignificant; and
 

 • Evaluate whether any additional element or
 combination of elements are other than what is well-understood, routine,
 conventional activity in the field, or simply append well-understood, routine,
 conventional activities previously known to the industry, specified at a high
 level of generality, to the judicial exception, per MPEP §
 2106.05(d) . 
 

 
 In the context of the flowchart in
 MPEP §
 2106 , subsection III, Step 2B determines whether:
 

 
 • The claim as a whole does not amount to
 significantly more than the exception itself (there is no inventive concept in
 the claim) (Step 2B: NO) and thus is not eligible, warranting a rejection for
 lack of subject matter eligibility and concluding the eligibility analysis; or
 
 

 • The claim as a whole does amount to
 significantly more than the exception (there is an inventive concept in the
 claim) (Step 2B: YES), and thus is eligible at Pathway C, thereby concluding
 the eligibility analysis. 
 

 
 Examiners should examine each claim for eligibility
 separately, based on the particular elements recited therein. Claims should not be
 judged to automatically stand or fall with similar claims in an application. For
 instance, one claim may be ineligible because it is directed to a judicial exception
 without amounting to significantly more, but another claim dependent on the first may
 be eligible because it recites additional elements that do amount to significantly
 more. 
 

 For more information on how to evaluate claims
 reciting multiple judicial exceptions, see MPEP §
 2106.04 , subsection II.B.
 

 If the claim as a whole does recite significantly
 more than the exception itself, the claim is eligible (Step 2B: YES) at Pathway C,
 and the eligibility analysis is complete. If there are no meaningful limitations in
 the claim that transform the exception into a patent-eligible application, such that
 the claim does not amount to significantly more than the exception itself, the claim
 is not patent-eligible (Step 2B: NO) and should be rejected under 35 U.S.C. 101 .
 See MPEP
 § 2106.07 for information on how to formulate an
 ineligibility rejection. 
 

 
 2106.05(a) Improvements to the Functioning of a Computer
 or To Any Other Technology or Technical Field [R-07.2022]
 

 In determining patent eligibility, examiners should
 consider whether the claim “purport(s) to improve the functioning of the computer
 itself” or “any other technology or technical field.” Alice Corp. Pty. Ltd.
 v. CLS Bank Int’l, 573 U.S. 208, 225, 110 USPQ2d 1976, 1984 (2014). This
 consideration has also been referred to as the search for a technological solution to
 a technological problem. See e.g., DDR Holdings, LLC. v. Hotels.com,
 L.P., 773 F.3d 1245, 1257, 113 USPQ2d 1097, 1105 (Fed. Cir. 2014);
 Amdocs (Israel), Ltd. v. Openet Telecom, Inc., 841 F.3d 1288,
 1300-01, 120 USPQ2d 1527, 1537 (Fed. Cir. 2016). 
 

 While improvements were evaluated in Alice
 Corp. as relevant to the search for an inventive concept (Step 2B),
 several decisions of the Federal Circuit have also evaluated this consideration when
 determining whether a claim was directed to an abstract idea (Step 2A). See,
 e.g., Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36,
 118 USPQ2d 1684, 1689 (Fed. Cir. 2016); McRO, Inc. v. Bandai Namco Games Am.
 Inc., 837 F.3d 1299, 1314-16, 120 USPQ2d 1091, 1102-03 (Fed. Cir. 2016);
 Visual Memory, LLC v. NVIDIA Corp., 867 F.3d 1253, 1259-60, 123
 USPQ2d 1712, 1717 (Fed. Cir. 2017). Thus, an examiner should evaluate whether a claim
 contains an improvement to the functioning of a computer or to any other technology
 or technical field at Step 2A Prong Two and Step 2B, as well as when considering
 whether the claim has such self-evident eligibility that it qualifies for the
 streamlined analysis. See MPEP § 2106.04(d)(1) for more
 information about evaluating improvements in Step 2A Prong Two, and
 MPEP
 § 2106.07(b) for more information about improvements in the
 streamlined analysis context. 
 

 If it is asserted that the invention improves upon
 conventional functioning of a computer, or upon conventional technology or
 technological processes, a technical explanation as to how to implement the invention
 should be present in the specification. That is, the disclosure must provide
 sufficient details such that one of ordinary skill in the art would recognize the
 claimed invention as providing an improvement. The specification need not explicitly
 set forth the improvement, but it must describe the invention such that the
 improvement would be apparent to one of ordinary skill in the art. Conversely, if the
 specification explicitly sets forth an improvement but in a conclusory manner (i.e.,
 a bare assertion of an improvement without the detail necessary to be apparent to a
 person of ordinary skill in the art), the examiner should not determine the claim
 improves technology. An indication that the claimed invention provides an improvement
 can include a discussion in the specification that identifies a technical problem and
 explains the details of an unconventional technical solution expressed in the claim,
 or identifies technical improvements realized by the claim over the prior art. For
 example, in McRO, the court relied on the specification’s
 explanation of how the particular rules recited in the claim enabled the automation
 of specific animation tasks that previously could only be performed subjectively by
 humans, when determining that the claims were directed to improvements in computer
 animation instead of an abstract idea. McRO, 837 F.3d at 1313-14,
 120 USPQ2d at 1100-01. In contrast, the court in Affinity Labs of Tex. v.
 DirecTV, LLC relied on the specification’s failure to provide details
 regarding the manner in which the invention accomplished the alleged improvement when
 holding the claimed methods of delivering broadcast content to cellphones ineligible.
 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016). 
 

 After the examiner has consulted the specification
 and determined that the disclosed invention improves technology, the claim must be
 evaluated to ensure the claim itself reflects the disclosed improvement in
 technology. Intellectual Ventures I LLC v. Symantec Corp., 838
 F.3d 1307, 1316, 120 USPQ2d 1353, 1359 (Fed. Cir. 2016) (patent owner argued that the
 claimed email filtering system improved technology by shrinking the protection gap
 and mooting the volume problem, but the court disagreed because the claims themselves
 did not have any limitations that addressed these issues). That is, the claim must
 include the components or steps of the invention that provide the improvement
 described in the specification. However, the claim itself does not need to explicitly
 recite the improvement described in the specification ( e.g., 
 “thereby increasing the bandwidth of the channel”). The full scope of the claim under
 the BRI should be considered to determine if the claim reflects an improvement in
 technology ( e.g., the improvement described in the specification).
 In making this determination, it is critical that examiners look at the claim “as a
 whole,” in other words, the claim should be evaluated “as an ordered combination,
 without ignoring the requirements of the individual steps.” When performing this
 evaluation, examiners should be “careful to avoid oversimplifying the claims” by
 looking at them generally and failing to account for the specific requirements of the
 claims. McRO, 837 F.3d at 1313, 120 USPQ2d at 1100.
 

 An important consideration in determining whether a
 claim improves technology is the extent to which the claim covers a particular
 solution to a problem or a particular way to achieve a desired outcome, as opposed to
 merely claiming the idea of a solution or outcome. McRO, 837 F.3d
 at 1314-15, 120 USPQ2d at 1102-03; DDR Holdings, 773 F.3d at 1259,
 113 USPQ2d at 1107. In this respect, the improvement consideration overlaps with
 other considerations, specifically the particular machine consideration (see
 MPEP
 § 2106.05(b) ), and the mere instructions to apply an
 exception consideration (see MPEP § 2106.05(f) ). Thus, evaluation
 of those other considerations may assist examiners in making a determination of
 whether a claim satisfies the improvement consideration. 
 

 It is important to note, the judicial exception alone
 cannot provide the improvement. The improvement can be provided by one or more
 additional elements. See the discussion of Diamond v. Diehr , 450
 U.S. 175, 187 and 191-92, 209 USPQ 1, 10 (1981)) in subsection II, below. In
 addition, the improvement can be provided by the additional element(s) in combination
 with the recited judicial exception. See MPEP §
 2106.04(d) (discussing Finjan, Inc. v. Blue Coat
 Sys., Inc., 879 F.3d 1299, 1303-04, 125 USPQ2d 1282, 1285-87 (Fed. Cir.
 2018)). Thus, it is important for examiners to analyze the claim as a whole when
 determining whether the claim provides an improvement to the functioning of computers
 or an improvement to other technology or technical field.
 

 During examination, the examiner should analyze the
 “improvements” consideration by evaluating the specification and the claims to ensure
 that a technical explanation of the asserted improvement is present in the
 specification, and that the claim reflects the asserted improvement. Generally,
 examiners are not expected to make a qualitative judgement on the merits of the
 asserted improvement. If the examiner concludes the disclosed invention does not
 improve technology, the burden shifts to applicant to provide persuasive arguments
 supported by any necessary evidence to demonstrate that one of ordinary skill in the
 art would understand that the disclosed invention improves technology. Any such
 evidence submitted under 37 CFR 1.132 must establish what
 the specification would convey to one of ordinary skill in the art and cannot be used
 to supplement the specification. See, e.g. MPEP §
 716.09 on 37 CFR 1.132 practice with
 respect to rejections under 35 U.S.C. 112(a) . For example, in
 response to a rejection under 35 U.S.C. 101 , an applicant could
 submit a declaration under § 1.132 providing testimony on
 how one of ordinary skill in the art would interpret the disclosed invention as
 improving technology and the underlying factual basis for that conclusion.
 

 I. IMPROVEMENTS TO COMPUTER
 FUNCTIONALITY In computer-related technologies, the examiner
 should determine whether the claim purports to improve computer capabilities or,
 instead, invokes computers merely as a tool. Enfish, LLC v. Microsoft
 Corp., 822 F.3d 1327, 1336, 118 USPQ2d 1684, 1689 (Fed. Cir. 2016).
 In Enfish, the court evaluated the patent eligibility of claims
 related to a self-referential database. Id. The court concluded
 the claims were not directed to an abstract idea, but rather an improvement to
 computer functionality. Id. It was the specification’s
 discussion of the prior art and how the invention improved the way the computer
 stores and retrieves data in memory in combination with the specific data
 structure recited in the claims that demonstrated eligibility. 822 F.3d at 1339,
 118 USPQ2d at 1691. The claim was not simply the addition of general purpose
 computers added post-hoc to an abstract idea, but a specific implementation of a
 solution to a problem in the software arts. 822 F.3d at 1339, 118 USPQ2d at
 1691.
 

 Examples that the courts have indicated may show
 an improvement in computer-functionality: 
 

 
 i. A modification of conventional Internet
 hyperlink protocol to dynamically produce a dual-source hybrid webpage,
 DDR Holdings, 773 F.3d at 1258-59, 113 USPQ2d at
 1106-07;
 

 ii. Inventive distribution of functionality
 within a network to filter Internet content, BASCOM Global Internet
 v. AT&T Mobility LLC, 827 F.3d 1341, 1350-51, 119 USPQ2d
 1236, 1243 (Fed. Cir. 2016); 
 

 iii. A method of rendering a halftone digital
 image, Research Corp. Techs. v. Microsoft Corp., 627 F.3d
 859, 868-69, 97 USPQ2d 1274, 1380 (Fed. Cir. 2010); 
 

 iv. A distributed network architecture operating
 in an unconventional fashion to reduce network congestion while generating
 networking accounting data records, Amdocs (Israel), Ltd. v. Openet
 Telecom, Inc., 841 F.3d 1288, 1300-01, 120 USPQ2d 1527, 1536-37
 (Fed. Cir. 2016);
 

 v. A memory system having programmable
 operational characteristics that are configurable based on the type of
 processor, which can be used with different types of processors without a
 tradeoff in processor performance, Visual Memory, LLC v. NVIDIA
 Corp., 867 F.3d 1253, 1259-60, 123 USPQ2d 1712, 1717 (Fed. Cir.
 2017);
 

 vi. Technical details as to how to transmit
 images over a cellular network or append classification information to
 digital image data, TLI Communications LLC v. AV Auto.
 LLC, 823 F.3d 607, 614-15, 118 USPQ2d 1744, 1749-50 (Fed. Cir.
 2016) (holding the claims ineligible because they fail to provide requisite
 technical details necessary to carry out the function); 
 

 vii. Particular structure of a server that stores
 organized digital images, TLI Communications, 823 F.3d at
 612, 118 USPQ2d at 1747 (finding the use of a generic server insufficient to
 add inventive concepts to an abstract idea); 
 

 viii. A particular way of programming or designing
 software to create menus, Apple, Inc. v. Ameranth, Inc., 
 842 F.3d 1229, 1241, 120 USPQ2d 1844, 1854 (Fed. Cir. 2016); 
 

 ix. A method that generates a security profile
 that identifies both hostile and potentially hostile operations, and can
 protect the user against both previously unknown viruses and "obfuscated
 code," which is an improvement over traditional virus scanning.
 Finjan Inc. v. Blue Coat Systems, 879 F.3d 1299, 1304,
 125 USPQ2d 1282, 1286 (Fed. Cir. 2018); 
 

 x. An improved user interface for electronic
 devices that displays an application summary of unlaunched applications,
 where the particular data in the summary is selectable by a user to launch
 the respective application. Core Wireless Licensing S.A.R.L., v. LG
 Electronics, Inc., 880 F.3d 1356, 1362-63, 125 USPQ2d 1436,
 1440-41 (Fed. Cir. 2018);
 

 xi. Specific interface and implementation for
 navigating complex three-dimensional spreadsheets using techniques unique to
 computers; Data Engine Techs., LLC v. Google LLC, 906
 F.3d 999, 1009, 128 USPQ2d 1381, 1387 (Fed. Cir. 2018); and
 

 xii. A specific method of restricting software
 operation within a license, Ancora Tech., Inc. v. HTC America,
 Inc., 908 F.3d 1343, 1345-46, 128 USPQ2d 1565, 1567 (Fed. Cir.
 2018). 
 

 
 It is important to note that in order for a method
 claim to improve computer functionality, the broadest reasonable interpretation of
 the claim must be limited to computer implementation. That is, a claim whose
 entire scope can be performed mentally, cannot be said to improve computer
 technology. Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d
 1138, 120 USPQ2d 1473 (Fed. Cir. 2016) (a method of translating a logic circuit
 into a hardware component description of a logic circuit was found to be
 ineligible because the method did not employ a computer and a skilled artisan
 could perform all the steps mentally). Similarly, a claimed process covering
 embodiments that can be performed on a computer, as well as embodiments that can
 be practiced verbally or with a telephone, cannot improve computer technology. See
 RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1328, 122
 USPQ2d 1377, 1381 (Fed. Cir. 2017) (process for encoding/decoding facial data
 using image codes assigned to particular facial features held ineligible because
 the process did not require a computer). 
 

 Examples that the courts have indicated may not be
 sufficient to show an improvement in computer-functionality:
 

 
 i. Generating restaurant menus with
 functionally claimed features, Ameranth, 842 F.3d at
 1245, 120 USPQ2d at 1857;
 

 ii. Accelerating a process of analyzing audit
 log data when the increased speed comes solely from the capabilities of a
 general-purpose computer, FairWarning IP, LLC v. Iatric Sys.,
 839 F.3d 1089, 1095, 120 USPQ2d 1293, 1296 (Fed. Cir. 2016);
 

 iii. Mere automation of manual processes, such as
 using a generic computer to process an application for financing a purchase,
 Credit Acceptance Corp. v. Westlake Services, 859 F.3d
 1044, 1055, 123 USPQ2d 1100, 1108-09 (Fed. Cir. 2017) or speeding up a
 loan-application process by enabling borrowers to avoid physically going to
 or calling each lender and filling out a loan application,
 LendingTree, LLC v. Zillow, Inc., 656 Fed. App'x 991,
 996-97 (Fed. Cir. 2016) (non-precedential); 
 

 iv. Recording, transmitting, and archiving
 digital images by use of conventional or generic technology in a nascent but
 well-known environment, without any assertion that the invention reflects an
 inventive solution to any problem presented by combining a camera and a
 cellular telephone, TLI Communications, 823 F.3d at
 611-12, 118 USPQ2d at 1747; 
 

 v. Affixing a barcode to a mail object in order
 to more reliably identify the sender and speed up mail processing, without
 any limitations specifying the technical details of the barcode or how it is
 generated or processed, Secured Mail Solutions, LLC v. Universal
 Wilde, Inc., 873 F.3d 905, 910-11, 124 USPQ2d 1502, 1505-06
 (Fed. Cir. 2017);
 

 vi. Instructions to display two sets of
 information on a computer display in a non-interfering manner, without any
 limitations specifying how to achieve the desired result, Interval
 Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1344-45, 127 USPQ2d
 1553, 1559-60 (Fed. Cir. 2018);
 

 vii. Providing historical usage information to
 users while they are inputting data, in order to improve the quality and
 organization of information added to a database, because “an improvement to
 the information stored by a database is not equivalent to an improvement in
 the database’s functionality,” BSG Tech LLC v. Buyseasons,
 Inc., 899 F.3d 1281, 1287-88, 127 USPQ2d 1688, 1693-94 (Fed.
 Cir. 2018); and 
 

 viii. Arranging transactional information on a
 graphical user interface in a manner that assists traders in processing
 information more quickly, Trading Technologies v. IBG
 LLC, 921 F.3d 1084, 1093-94, 2019 USPQ2d 138290 (Fed. Cir.
 2019).
 

 II. IMPROVEMENTS TO ANY OTHER
 TECHNOLOGY OR TECHNICAL FIELD The courts have also found that improvements in
 technology beyond computer functionality may demonstrate patent eligibility. In
 McRO, the Federal Circuit held claimed methods of automatic
 lip synchronization and facial expression animation using computer-implemented
 rules to be patent eligible under 35 U.S.C. 101 , because they
 were not directed to an abstract idea. McRO, 837 F.3d at 1316,
 120 USPQ2d at 1103. The basis for the McRO court's decision was
 that the claims were directed to an improvement in computer animation and thus did
 not recite a concept similar to previously identified abstract ideas.
 Id. The court relied on the specification's explanation of
 how the claimed rules enabled the automation of specific animation tasks that
 previously could not be automated. 837 F.3d at 1313, 120 USPQ2d at 1101. The
 McRO court indicated that it was the incorporation of the
 particular claimed rules in computer animation that "improved [the] existing
 technological process", unlike cases such as Alice where a
 computer was merely used as a tool to perform an existing process. 837 F.3d at
 1314, 120 USPQ2d at 1102. The McRO court also noted that the
 claims at issue described a specific way (use of particular rules to set morph
 weights and transitions through phonemes) to solve the problem of producing
 accurate and realistic lip synchronization and facial expressions in animated
 characters, rather than merely claiming the idea of a solution or outcome, and
 thus were not directed to an abstract idea. 837 F.3d at 1313, 120 USPQ2d at 1101. 
 

 Consideration of improvements is relevant to the
 eligibility analysis regardless of the technology of the claimed invention. That
 is, the consideration applies equally whether it is a computer-implemented
 invention, an invention in the life sciences, or any other technology. See,
 e.g., Rapid Litigation Management v. CellzDirect, Inc., 827
 F.3d 1042, 119 USPQ2d 1370 (Fed. Cir. 2016), in which the court noted that a
 claimed process for preserving hepatocytes could be eligible as an improvement to
 technology because the claim achieved a new and improved way for preserving
 hepatocyte cells for later use, even though the claim is based on the discovery of
 something natural. Notably, the court did not distinguish between the types of
 technology when determining the invention improved technology. However, it is
 important to keep in mind that an improvement in the abstract idea itself
 ( e.g. a recited fundamental economic concept) is not an
 improvement in technology. For example, in Trading Technologies Int’l v.
 IBG, 921 F.3d 1084, 1093-94, 2019 USPQ2d 138290 (Fed. Cir. 2019), the
 court determined that the claimed user interface simply provided a trader with
 more information to facilitate market trades, which improved the business process
 of market trading but did not improve computers or technology.
 

 Examples that the courts have indicated may be
 sufficient to show an improvement in existing technology include: 
 

 
 i. Particular computerized method of operating
 a rubber molding press, e.g., a modification of
 conventional rubber-molding processes to utilize a thermocouple inside the
 mold to constantly monitor the temperature and thus reduce under- and
 over-curing problems common in the art, Diamond v. Diehr, 
 450 U.S. 175, 187 and 191-92, 209 USPQ 1, 8 and 10 (1981); 
 

 ii. New telephone, server, or combination
 thereof, TLI Communications LLC v. AV Auto. LLC, 823 F.3d
 607, 612, 118 USPQ2d 1744, 1747 (Fed. Cir. 2016); 
 

 iii. An advance in the process of downloading
 content for streaming, Affinity Labs of Tex. v. DirecTV,
 LLC, 838 F.3d 1253, 1256, 120 USPQ2d 1201, 1202 (Fed. Cir.
 2016); 
 

 iv. Improved, particular method of digital data
 compression, DDR Holdings, LLC. v. Hotels.com, L.P., 773
 F.3d 1245, 1259, 113 USPQ2d 1097, 1107 (Fed. Cir. 2014);
 Intellectual Ventures I v. Symantec Corp., 838 F.3d
 1307, 1315, 120 USPQ2d 1353, 1358 (Fed. Cir. 2016); 
 

 v. Particular method of incorporating virus
 screening into the Internet, Symantec Corp., 838 F.3d at
 1321-22, 120 USPQ2d at 1362-63;
 

 vi. Components or methods, such as measurement
 devices or techniques, that generate new data, Electric Power
 Group, LLC v. Alstom, S.A., 830 F.3d 1350, 1355, 119 USPQ2d
 1739, 1742 (Fed. Cir. 2016); 
 

 vii. Particular configuration of inertial sensors
 and a particular method of using the raw data from the sensors,
 Thales Visionix, Inc. v. United States, 850 F.3d 1343,
 1348-49, 121 USPQ2d 1898, 1902 (Fed. Cir. 2017);
 

 viii. A specific, structured graphical user
 interface that improves the accuracy of trader transactions by displaying
 bid and asked prices in a particular manner that prevents order entry at a
 changed price, Trading Techs. Int’l, Inc. v. CQG, Inc., 
 675 Fed. App'x 1001 (Fed. Cir. 2017) (non-precedential); and 
 

 ix. Improved process for preserving hepatocytes
 for later use, Rapid Litig. Mgmt. v. CellzDirect, Inc., 
 827 F.3d 1042, 1050, 119 USPQ2d 1370, 1375 (Fed. Cir. 2016). 
 

 
 To show that the involvement of a computer assists
 in improving the technology, the claims must recite the details regarding how a
 computer aids the method, the extent to which the computer aids the method, or the
 significance of a computer to the performance of the method. Merely adding generic
 computer components to perform the method is not sufficient. Thus, the claim must
 include more than mere instructions to perform the method on a generic component
 or machinery to qualify as an improvement to an existing technology. See
 MPEP § 2106.05(f) for more information about mere
 instructions to apply an exception. 
 

 Examples that the courts have indicated may not be
 sufficient to show an improvement to technology include:
 

 
 i. A commonplace business method being applied
 on a general purpose computer, Alice Corp., 573 U.S. at
 223, 110 USPQ2d at 1976; Versata Dev. Group, Inc. v. SAP Am.,
 Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir.
 2015); 
 

 ii. Using well-known standard laboratory
 techniques to detect enzyme levels in a bodily sample such as blood or
 plasma, Cleveland Clinic Foundation v. True Health Diagnostics,
 LLC, 859 F.3d 1352, 1355, 1362, 123 USPQ2d 1081, 1082-83, 1088
 (Fed. Cir. 2017); 
 

 iii. Gathering and analyzing information using
 conventional techniques and displaying the result, TLI
 Communications, 823 F.3d at 612-13, 118 USPQ2d at 1747-48;
 

 iv. Delivering broadcast content to a portable
 electronic device such as a cellular telephone, when claimed at a high level
 of generality, Affinity Labs of Tex. v. Amazon.com, 838
 F.3d 1266, 1270, 120 USPQ2d 1210, 1213 (Fed. Cir. 2016); Affinity
 Labs of Tex. v. DirecTV, LLC, 838 F.3d 1253, 1262, 120 USPQ2d
 1201, 1207 (Fed. Cir. 2016); 
 

 v. A general method of screening emails on a
 generic computer, Symantec, 838 F.3d at 1315-16, 120
 USPQ2d at 1358-59; 
 

 vi. An advance in the informational content of a
 download for streaming, Affinity Labs of Tex. v. DirecTV,
 LLC, 838 F.3d 1253, 1263, 120 USPQ2d 1201, 1208 (Fed. Cir.
 2016); and 
 

 vii. Selecting one type of content
 ( e.g., FM radio content) from within a range of
 existing broadcast content types, or selecting a particular generic function
 for computer hardware to perform (e.g., buffering content) from within a
 range of well-known, routine, conventional functions performed by the
 hardware, Affinity Labs of Tex. v. DirecTV, LLC, 838 F.3d
 1253, 1264, 120 USPQ2d 1201, 1208 (Fed. Cir. 2016). 
 

 
 

 
 2106.05(b) Particular Machine [R-07.2022]

 When determining whether a claim integrates a
 judicial exception, into a practical application in Step 2A Prong Two and whether a
 claim recites significantly more than a judicial exception in Step 2B, examiners
 should consider whether the judicial exception is applied with, or by use of, a
 particular machine. "The machine-or-transformation test is a useful and important
 clue, and investigative tool” for determining whether a claim is patent eligible
 under §
 101 . Bilski v. Kappos, 561 U.S. 593, 604, 95
 USPQ2d 1001, 1007 (2010). 
 

 It is noted that while the application of a judicial
 exception by or with a particular machine is an important clue, it is
 not a stand-alone test for eligibility.
 Id. 

 All claims must be evaluated for eligibility using the
 two-part test from Alice/Mayo . If a claim passes the
 Alice/Mayo test ( i.e., is not directed to an
 exception at Step 2A, or amounts to significantly more than any recited exception in
 Step 2B), then the claim is eligible even if it fails the machine-or-transformation
 test ("M-or-T test"). Bilski v. Kappos, 561 U.S. 593, 604, 95
 USPQ2d 1001, 1007 (2010) (explaining that a claim may be eligible even if it does not
 satisfy the M-or-T test); McRO, Inc. v. Bandai Namco Games Am.
 Inc., 837 F.3d 1299, 1315, 120 USPQ2d 1091, 1102 (Fed. Cir. 2016)
 (“[T]here is nothing that requires a method ‘be tied to a machine or transform an
 article’ to be patentable”). And if a claim fails the Alice/Mayo 
 test ( i.e., is directed to an exception at Step 2A and does not
 amount to significantly more than the exception in Step 2B), then the claim is
 ineligible even if it passes the M-or-T test. DDR Holdings, LLC v.
 Hotels.com, L.P., 773 F.3d 1245, 1256, 113 USPQ2d 1097, 1104 (Fed. Cir.
 2014) (“[I]n Mayo, the Supreme Court emphasized that satisfying
 the machine-or-transformation test, by itself, is not sufficient to render a claim
 patent-eligible, as not all transformations or machine implementations infuse an
 otherwise ineligible claim with an 'inventive concept.'”). 
 

 Examiners may find it helpful to evaluate other
 considerations such as the mere instructions to apply an exception consideration (see
 MPEP §
 2106.05(f) ), the insignificant extra-solution activity
 consideration (see MPEP § 2106.05(g) ), and the field of
 use and technological environment consideration (see MPEP §
 2106.05(h) ), when making a determination of whether an
 element (or combination of elements) is a particular machine. For information on the
 definition of the term “machine,” see MPEP §
 2106.03 . 
 

 When determining whether a machine recited in a claim
 provides significantly more, the following factors are relevant.
 

 I. THE PARTICULARITY OR GENERALITY OF
 THE ELEMENTS OF THE MACHINE OR APPARATUS The particularity or generality of the elements of
 the machine or apparatus, i.e., the degree to which the machine
 in the claim can be specifically identified (not any and all machines). One
 example of applying a judicial exception with a particular machine is
 Mackay Radio & Tel. Co. v. Radio Corp. of America, 306
 U.S. 86, 40 USPQ 199 (1939). In this case, a mathematical formula was employed to
 use standing wave phenomena in an antenna system. The claim recited the particular
 type of antenna and included details as to the shape of the antenna and the
 conductors, particularly the length and angle at which they were arranged. 306
 U.S. at 95-96; 40 USPQ at 203. Another example is Eibel
 Process, in which gravity (a law of nature or natural phenomenon) was
 applied by a Fourdrinier machine (which was understood in the art to have a
 specific structure comprising a headbox, a paper-making wire, and a series of
 rolls) arranged in a particular way to optimize the speed of the machine while
 maintaining quality of the formed paper web. Eibel Process Co. v. Minn.
 & Ont. Paper Co., 261 U.S. 45, 64-65 (1923). 
 

 It is important to note that a general purpose
 computer that applies a judicial exception, such as an abstract idea, by use of
 conventional computer functions does not qualify as a particular machine.
 Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716-17, 112
 USPQ2d 1750, 1755-56 (Fed. Cir. 2014). See also TLI Communications LLC v.
 AV Automotive LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed.
 Cir. 2016) (mere recitation of concrete or tangible components is not an inventive
 concept); Eon Corp. IP Holdings LLC v. AT&T Mobility LLC, 
 785 F.3d 616, 623, 114 USPQ2d 1711, 1715 (Fed. Cir. 2015) (noting that
 Alappat ’s rationale that an otherwise ineligible algorithm
 or software could be made patent-eligible by merely adding a generic computer to
 the claim was superseded by the Supreme Court’s Bilski and
 Alice Corp. decisions). If applicant amends a claim to add a
 generic computer or generic computer components and asserts that the claim recites
 significantly more because the generic computer is 'specially programmed' (as in
 Alappat, now considered superseded) or is a 'particular
 machine' (as in Bilski ), the examiner should look at whether
 the added elements integrate the exception into a practical application or provide
 significantly more than the judicial exception. Merely adding a generic computer,
 generic computer components, or a programmed computer to perform generic computer
 functions does not automatically overcome an eligibility rejection. Alice
 Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 223-24, 110 USPQ2d
 1976, 1983-84 (2014). See In re Alappat , 33 F.3d 1526, 1545, 31
 USPQ2d 1545, 1558 (Fed. Cir. 1994); In re Bilski , 545 F.3d 943,
 88 USPQ2d 1385 (Fed. Cir. 2008)
 

 II. WHETHER THE MACHINE OR APPARATUS
 IMPLEMENTS THE STEPS OF THE METHOD Integral use of a machine to achieve performance
 of a method may integrate the recited judicial exception into a practical
 application or provide significantly more, in contrast to where the machine is
 merely an object on which the method operates, which does not integrate the
 exception into a practical application or provide significantly more. See
 CyberSource v. Retail Decisions, 654 F.3d 1366, 1370, 99
 USPQ2d 1690, 1694 (Fed. Cir. 2011) ("We are not persuaded by the appellant's
 argument that the claimed method is tied to a particular machine because it ‘would
 not be necessary or possible without the Internet.’ . . . Regardless of whether
 "the Internet" can be viewed as a machine, it is clear that the Internet cannot
 perform the fraud detection steps of the claimed method"). For example, as
 described in MPEP § 2106.05(f) , additional
 elements that invoke computers or other machinery merely as a tool to perform an
 existing process will generally not amount to significantly more than a judicial
 exception. See, e.g., Versata Development Group v. SAP America, 
 793 F.3d 1306, 1335, 115 USPQ2d 1681, 1702 (Fed. Cir. 2015) (explaining that in
 order for a machine to add significantly more, it must “play a significant part in
 permitting the claimed method to be performed, rather than function solely as an
 obvious mechanism for permitting a solution to be achieved more quickly”). 
 

 III. WHETHER ITS INVOLVEMENT IS
 EXTRA-SOLUTION ACTIVITY OR A FIELD-OF-USE Whether its involvement is extra-solution activity
 or a field-of-use, i.e., the extent to which (or how) the
 machine or apparatus imposes meaningful limits on the claim. Use of a machine that
 contributes only nominally or insignificantly to the execution of the claimed
 method (e.g., in a data gathering step or in a field-of-use limitation) would not
 integrate a judicial exception or provide significantly more. See
 Bilski, 561 U.S. at 610, 95 USPQ2d at 1009 (citing
 Parker v. Flook, 437 U.S. 584, 590, 198 USPQ 193, 197
 (1978)), and CyberSource v. Retail Decisions, 654 F.3d 1366,
 1370, 99 USPQ2d 1690 (Fed. Cir. 2011) (citations omitted) (“[N]othing in claim 3
 requires an infringer to use the Internet to obtain that data. The Internet is
 merely described as the source of the data. We have held that mere
 ‘[data-gathering] step[s] cannot make an otherwise nonstatutory claim statutory.’”
 654 F.3d at 1375, 99 USPQ2d at 1694 (citation omitted)). See MPEP § 2106.05(g) &
 (h) for more information on insignificant extra-solution
 activity and field of use, respectively. 
 

 

 
 2106.05(c) Particular Transformation [R-07.2022]

 Another consideration when determining whether a
 claim integrates a judicial exception into a practical application in Step 2A Prong
 Two and whether a claim recites significantly more in Step 2B is whether the claim
 effects a transformation or reduction of a particular article to a different state or
 thing. "[T]ransformation and reduction of an article ‘to a different state or thing’
 is the clue to patentability of a process claim that does not include particular
 machines." Bilski v. Kappos, 561 U.S. 593, 658, 95 USPQ2d 1001,
 1007 (2010) (quoting Gottschalk v. Benson, 409 U.S. 63, 70, 175
 USPQ 673, 676 (1972)). If such a transformation exists, the claims are likely to be
 significantly more than any recited judicial exception or to integrate any recited
 judicial exception into a practical application. 
 

 It is noted that while the transformation of an
 article is an important clue, it is not a stand-alone test for
 eligibility. Id. 

 All claims must be evaluated for eligibility using
 the two-part test from Alice/Mayo . If a claim passes the
 Alice/Mayo test ( i.e., is not directed to an
 exception at Step 2A, or amounts to significantly more than any recited exception in
 Step 2B), then the claim is eligible even if it “fails” the M-or-T test.
 Bilski v. Kappos, 561 U.S. 593, 604, 95 USPQ2d 1001, 1007
 (2010) (explaining that a claim may be eligible even if it does not satisfy the
 M-or-T test); McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d
 1299, 1315, 120 USPQ2d 1091, 1102 (Fed. Cir. 2016) (“[T]here is nothing that requires
 a method ‘be tied to a machine or transform an article’ to be patentable”). And if a
 claim fails the Alice/Mayo test ( i.e., is
 directed to an exception at Step 2A and does not amount to significantly more than
 the exception in Step 2B), then the claim is ineligible even if it passes the M-or-T
 test. DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256,
 113 USPQ2d 1097, 1104 (Fed. Cir. 2014) (“[I]n Mayo, the Supreme
 Court emphasized that satisfying the machine-or-transformation test, by itself, is
 not sufficient to render a claim patent-eligible, as not all transformations or
 machine implementations infuse an otherwise ineligible claim with an “inventive
 concept.”). 
 

 Examiners may find it helpful to evaluate other
 considerations such as the mere instructions to apply an exception consideration (see
 MPEP §
 2106.05(f) ), the insignificant extra-solution activity
 consideration (see MPEP § 2106.05(g) ), and the field of
 use and technological environment consideration (see MPEP §
 2106.05(h) ), when making a determination of whether a claim
 satisfies the particular transformation consideration. 
 

 An “article” includes a physical object or substance.
 The physical object or substance must be particular, meaning it can be specifically
 identified. “Transformation” of an article means that the “article” has changed to a
 different state or thing. Changing to a different state or thing usually means more
 than simply using an article or changing the location of an article. A new or
 different function or use can be evidence that an article has been transformed.
 Purely mental processes in which thoughts or human based actions are “changed” are
 not considered an eligible transformation. For data, mere “manipulation of basic
 mathematical constructs [i.e.,] the paradigmatic ‘abstract idea,’” has not been
 deemed a transformation. CyberSource v. Retail Decisions, 654 F.3d
 1366, 1372 n.2, 99 USPQ2d 1690, 1695 n.2 (Fed. Cir. 2011) (quoting In re
 Warmerdam, 33 F.3d 1354, 1355, 1360, 31 USPQ2d 1754, 1755, 1759 (Fed.
 Cir. 1994)).
 

 Tilghman v. Proctor, 102 U.S. 707
 (1881), provides an example of effecting a transformation of a particular article to
 a different state or thing. In that case, the claim was directed to a process of
 subjecting a mixture of fat and water to a high degree of heat and included
 additional parameters relating to the level of heat, the quantities of fat and water,
 and the strength of the mixing vessel. The claimed process, which used the natural
 principle that the elements of neutral fat require that they be severally united with
 an atomic equivalent of water in order to separate and become free, resulted in the
 transformation of the fatty bodies into fat acids and glycerine. Id. at
 729 .
 

 Where a transformation is recited in a claim, the
 following factors are relevant to the analysis:
 

 
 1. The particularity or generality of the
 transformation. According to the Supreme Court, inventions
 comprising processes of “‘tanning, dyeing, making waterproof cloth, vulcanizing
 India rubber [or] smelting ores’ . . . are instances . . . where the use of
 chemical substances or physical acts, such as temperature control, changes
 articles or materials [in such a manner that is] sufficiently definite to
 confine the patent monopoly within rather definite bounds.” Gottschalk
 v. Benson, 409 U.S. 63, 70, 175 USPQ 673, 676 (1972) (discussing
 Corning v. Burden, 15 How. (56 U.S.) 252, 267-68 (1854)).
 Therefore, a more particular transformation would likely provide significantly
 more. 
 

 2. The degree to which the recited article is
 particular. A transformation applied to a generically recited
 article or to any and all articles would likely not provide significantly more
 than the judicial exception. A transformation that can be specifically
 identified, or that applies to only particular articles, is more likely to
 provide significantly more (or integrates a judicial exception into a practical
 application). 
 

 3. The nature of the transformation in terms
 of the type or extent of change in state or thing. A transformation
 resulting in the transformed article having a different function or use, would
 likely provide significantly more, but a transformation resulting in the
 transformed article merely having a different location, would likely not
 provide significantly more (or integrate a judicial exception into a practical
 application). For example, a process that transforms raw, uncured synthetic
 rubber into precision-molded synthetic rubber products, as discussed in
 Diamond v. Diehr, 450 U.S. 175, 184, 209 USPQ 1, 21
 (1981)), provides significantly more (or integrate a judicial exception into a
 practical application).
 

 4. The nature of the article transformed.
 Transformation of a physical or tangible object or substance is more
 likely to provide significantly more (or integrate a judicial exception into a
 practical application) than the transformation of an intangible concept such as
 a contractual obligation or mental judgment.
 

 5. Whether the transformation is
 extra-solution activity or a field-of-use ( i.e., the
 extent to which (or how) the transformation imposes meaningful limits on the
 execution of the claimed method steps). A transformation that
 contributes only nominally or insignificantly to the execution of the claimed
 method ( e.g., in a data gathering step or in a field-of-use
 limitation) would not provide significantly more (or integrate a judicial
 exception into a practical application). For example, in
 Mayo the Supreme Court found claims regarding calibrating
 the proper dosage of thiopurine drugs to be patent ineligible subject matter.
 The Federal Circuit had held that the step of administering the thiopurine drug
 demonstrated a transformation of the human body and blood.
 Mayo, 566 U.S. at 76, 101 USPQ2d at 1967. The Supreme
 Court disagreed, finding that this step was only a field-of-use limitation and
 did not provide significantly more than the judicial exception.
 Id. See MPEP §
 2106.05(g) &
 (h) for more information on insignificant
 extra-solution activity and field of use, respectively.
 

 
 

 
 2106.05(d) Well-Understood, Routine, Conventional
 Activity [R-07.2022]
 

 Another consideration when determining whether a claim
 recites significantly more than a judicial exception is whether the additional
 element(s) are well-understood, routine, conventional activities previously known to
 the industry. This consideration is only evaluated in Step 2B of the eligibility
 analysis.
 

 If the additional element (or combination of elements)
 is a specific limitation other than what is well-understood, routine and conventional
 in the field, for instance because it is an unconventional step that confines the
 claim to a particular useful application of the judicial exception, then this
 consideration favors eligibility. If, however, the additional element (or combination
 of elements) is no more than well-understood, routine, conventional activities
 previously known to the industry, which is recited at a high level of generality,
 then this consideration does not favor eligibility. 
 

 DDR Holdings, LLC v. Hotels.com,
 L.P., 773 F.3d 1245, 113 USPQ2d 1097 (Fed. Cir. 2014), provides an
 example of additional elements that favored eligibility because they were more than
 well-understood, routine conventional activities in the field. The claims in
 DDR Holdings were directed to systems and methods of generating
 a composite webpage that combines certain visual elements of a host website with the
 content of a third-party merchant. 773 F.3d at 1248, 113 USPQ2d at 1099. The court
 found that the claim had additional elements that amounted to significantly more than
 the abstract idea, because they modified conventional Internet hyperlink protocol to
 dynamically produce a dual-source hybrid webpage, which differed from the
 conventional operation of Internet hyperlink protocol that transported the user away
 from the host’s webpage to the third party’s webpage when the hyperlink was
 activated. 773 F.3d at 1258-59, 113 USPQ2d at 1106-07. Thus, the claims in
 DDR Holdings were eligible. 
 

 On the other hand, Mayo Collaborative Servs.
 v. Prometheus Labs., Inc., 566 U.S. 66, 67, 101 USPQ2d 1961, 1964 (2010)
 provides an example of additional elements that were not an inventive concept because
 they were merely well-understood, routine, conventional activity previously known to
 the industry, which were not by themselves sufficient to transform a judicial
 exception into a patent eligible invention. Mayo Collaborative Servs. v.
 Prometheus Labs., Inc., 566 U.S. 66, 79-80, 101 USPQ2d 1969 (2012)
 (citing Parker v. Flook, 437 U.S. 584, 590, 198 USPQ 193, 199
 (1978) (the additional elements were “well known” and, thus, did not amount to a
 patentable application of the mathematical formula)). In Mayo , the
 claims at issue recited naturally occurring correlations (the relationships between
 the concentration in the blood of certain thiopurine metabolites and the likelihood
 that a drug dosage will be ineffective or induce harmful side effects) along with
 additional elements including telling a doctor to measure thiopurine metabolite
 levels in the blood using any known process. 566 U.S. at 77-79, 101 USPQ2d at
 1967-68. The Court found this additional step of measuring metabolite levels to be
 well-understood, routine, conventional activity already engaged in by the scientific
 community because scientists “routinely measured metabolites as part of their
 investigations into the relationships between metabolite levels and efficacy and
 toxicity of thiopurine compounds.” 566 U.S. at 79, 101 USPQ2d at 1968. Even when
 considered in combination with the other additional elements, the step of measuring
 metabolite levels did not amount to an inventive concept, and thus the claims in
 Mayo were not eligible. 566 U.S. at 79-80, 101 USPQ2d at
 1968-69.
 

 I. EVALUATING WHETHER THE ADDITIONAL
 ELEMENTS ARE WELL-UNDERSTOOD, ROUTINE, CONVENTIONAL ACTIVITY When making a determination whether the additional
 elements in a claim amount to significantly more than a judicial exception, the
 examiner should evaluate whether the elements define only well-understood,
 routine, conventional activity. In this respect, the well-understood, routine,
 conventional consideration overlaps with other Step 2B considerations,
 particularly the improvement consideration (see MPEP §
 2106.05(a) ), the mere instructions to apply an exception
 consideration (see MPEP § 2106.05(f) ), and the
 insignificant extra-solution activity consideration (see MPEP §
 2106.05(g) ). Thus, evaluation of those other
 considerations may assist examiners in making a determination of whether a
 particular element or combination of elements is well-understood, routine,
 conventional activity. 
 

 In addition, examiners should keep in mind the
 following points when determining whether additional elements define only
 well-understood, routine, conventional activity. 
 

 
 1. An additional element (or combination
 of additional elements) that is known in the art can still be
 unconventional or non-routine. The question of whether a
 particular claimed invention is novel or obvious is “fully apart” from the
 question of whether it is eligible. Diamond v. Diehr, 450
 U.S. 175, 190, 209 USPQ 1, 9 (1981). For example, claims may exhibit an
 improvement over conventional computer functionality even if the improvement
 lacks novelty over the prior art. Compare, e.g., Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 118 USPQ2d
 1684 (Fed. Cir. 2016) (holding several claims from U.S. Patent Nos.
 6,151,604 and 6,163,775 eligible) with Microsoft Corp. v. Enfish,
 LLC, 662 Fed. App'x 981 (Fed. Cir. 2016) (holding some of the
 same claims to be anticipated by prior art). The eligible claims in
 Enfish recited a self-referential database having two
 key features: all entity types can be stored in a single table; and the
 table rows can contain information defining the table columns.
 Enfish, 822 F.3d at 1332, 118 USPQ2d at 1687. Although
 these features were taught by a single prior art reference (thus
 anticipating the claims), Microsoft Corp., 662 Fed. App'x
 at 986, the features were not conventional and thus were considered to
 reflect an improvement to existing technology. In particular, they enabled
 the claimed table to achieve benefits over conventional databases, such as
 increased flexibility, faster search times, and smaller memory requirements.
 Enfish, 822 F.3d at 1337, 118 USPQ2d at 1690.
 

 2. A factual determination is required to
 support a conclusion that an additional element (or combination of
 additional elements) is well-understood, routine, conventional
 activity. Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d
 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art
 search is necessary to resolve this inquiry. Instead, examiners should rely
 on what the courts have recognized, or those in the art would recognize, as
 elements that are well-understood, routine, conventional activity in the
 relevant field when making the required determination. For example, in many
 instances, the specification of the application may indicate that additional
 elements are well-known or conventional. See, e.g., Intellectual
 Ventures v. Symantec, 838 F.3d 1307, 1317; 120 USPQ2d 1353,
 1359 (Fed. Cir. 2016) (“The written description is particularly useful in
 determining what is well-known or conventional”); Internet Patents
 Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d
 1414, 1418 (Fed. Cir. 2015) (relying on specification’s description of
 additional elements as “well-known”, “common” and “conventional”);
 TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607,
 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (Specification described
 additional elements as “either performing basic computer functions such as
 sending and receiving data, or performing functions ‘known’ in the art.”). 
 As such, an examiner should determine that
 an element (or combination of elements) is well-understood, routine,
 conventional activity only when the examiner can readily conclude, based on
 their expertise in the art, that the element is widely prevalent or in
 common use in the relevant industry. The analysis as to whether an element
 (or combination of elements) is widely prevalent or in common use is the
 same as the analysis under 35 U.S.C. 112(a) as to
 whether an element is so well-known that it need not be described in detail
 in the patent specification. See Genetic Techs. Ltd. v. Merial
 LLC, 818 F.3d 1369, 1377, 118 USPQ2d 1541, 1546 ( Fed. Cir.
 2016) (supporting the position that amplification was well-understood,
 routine, conventional for purposes of subject matter eligibility by
 observing that the patentee expressly argued during prosecution of the
 application that amplification was a technique readily practiced by those
 skilled in the art to overcome the rejection of the claim under
 35
 U.S.C. 112 , first paragraph); see also
 Lindemann Maschinenfabrik GMBH v. Am. Hoist & Derrick
 Co., 730 F.2d 1452, 1463, 221 USPQ 481, 489 (Fed. Cir. 1984)
 ("[T]he specification need not disclose what is well known in the art.");
 In re Myers, 410 F.2d 420, 424, 161 USPQ 668, 671
 (CCPA 1969) ("A specification is directed to those skilled in the art and
 need not teach or point out in detail that which is well-known in the
 art."); Exergen Corp., 725 Fed. App’x. 959, 965 (Fed.
 Cir. 2018) (holding that "[l]ike indefiniteness, enablement, or obviousness,
 whether a claim is directed to patent eligible subject matter is a question
 of law based on underlying facts," and noting that the Supreme Court has
 recognized that "the inquiry 'might sometimes overlap' with other
 fact-intensive inquiries like novelty under 35 U.S.C. §
 102 "). If the element is not widely prevalent or in
 common use, or is otherwise beyond those elements recognized in the art or
 by the courts as being well-understood, routine or conventional, then the
 element will in most cases favor eligibility. For example, even if a
 particular technique ( e.g., measuring blood glucose via
 an earring worn by a person with diabetes) would have been obvious to one of
 ordinary skill in the art because it was discussed in several widely-read
 scientific journals or used by a few scientists, mere knowledge of the
 particular technique or use of the particular technique by a few scientists
 is not necessarily sufficient to make the use of the particular technique
 routine or conventional in the relevant field. The examiner in this
 situation would already know, based on the examiner's expertise in the
 field, that blood glucose is routinely and conventionally monitored by other
 techniques ( e.g., via placing a small droplet of blood on
 a diagnostic test strip, or via an implanted insulin pump with a glucose
 sensor). Thus, the examiner would not need to perform a prior art search in
 order to determine that the particular claimed technique using the
 glucose-sensing earring was not well-understood, routine, conventional
 activity previously engaged in by scientists in the field. 
 

 The required factual determination must be
 expressly supported in writing, as discussed in MPEP §
 2106.07(a) . Appropriate forms of support include
 one or more of the following: (a) A citation to an express statement in the
 specification or to a statement made by an applicant during prosecution that
 demonstrates the well-understood, routine, conventional nature of the
 additional element(s); (b) A citation to one or more of the court decisions
 discussed in Subsection II below as noting the well-understood, routine,
 conventional nature of the additional element(s); (c) A citation to a
 publication that demonstrates the well-understood, routine, conventional
 nature of the additional element(s); and (d) A statement that the examiner
 is taking official notice of the well-understood, routine, conventional
 nature of the additional element(s). For more information on supporting a
 conclusion that an additional element (or combination of additional
 elements) is well-understood, routine, conventional activity, see
 MPEP § 2106.07(a) ,
 subsection III.
 

 

 3. Even if one or more additional elements
 are well-understood, routine, conventional activity when considered
 individually, the combination of additional elements may amount to an
 inventive concept. Diamond v. Diehr, 450 U.S. at 188, 209 USPQ at 9 (1981)
 (“[A] new combination of steps in a process may be patentable even though
 all the constituents of the combination were well known and in common use
 before the combination was made.”). For example, a microprocessor that
 performs mathematical calculations and a clock that produces time data may
 individually be generic computer components that perform merely generic
 computer functions, but when combined may perform functions that are not
 generic computer functions and thus be an inventive concept. See,
 e.g. Rapid Litig. Mgmt. v. CellzDirect, Inc., 827 F.3d
 1042, 1051, 119 USPQ2d 1370, 1375 (Fed. Cir. 2016) (holding that while the
 additional steps of freezing and thawing hepatocytes were well known,
 repeating those steps, contrary to what was taught in the art, was not
 routine or conventional). For example, in BASCOM, even
 though the court found that all of the additional elements in the claim
 recited generic computer network or Internet components, the elements in
 combination amounted to significantly more because of the non-conventional
 and non-generic arrangement that provided a technical improvement in the
 art. BASCOM Global Internet Servs. v. AT&T Mobility
 LLC, 827 F.3d 1341, 1350-51, 119 USPQ2d 1236, 1243-44
 (2016).
 

 
 A rejection should only be made if an examiner
 relying on the examiner's expertise in the art can conclude in the Step 2B inquiry
 that the additional elements do not amount to significantly more (Step 2B: NO). If
 the elements or functions are beyond those recognized in the art or by the courts
 as being well‐understood, routine, conventional activity, then the elements or
 functions will in most cases amount to significantly more (Step 2B: YES). For more
 information on formulating a subject matter eligibility rejection involving
 well-understood, routine, conventional activity, see MPEP §
 2106.07(a) . 
 

 II. ELEMENTS THAT THE COURTS HAVE
 RECOGNIZED AS WELL-UNDERSTOOD, ROUTINE, CONVENTIONAL ACTIVITY IN PARTICULAR
 FIELDS Because examiners should rely on what the courts
 have recognized, or those of ordinary skill in the art would recognize, as
 elements that describe well‐understood, routine activities, the following section
 provides examples of elements that have been recognized by the courts as
 well-understood, routine, conventional activity in particular fields. It should be
 noted, however, that many of these examples failed to satisfy other considerations
 ( e.g., because they were recited at a high level of
 generality and thus were mere instructions to apply an exception, or were
 insignificant extra-solution activity). Thus, examiners should carefully analyze
 additional elements in a claim with respect to all relevant Step 2B
 considerations, including this consideration, before making a conclusion as to
 whether they amount to an inventive concept.
 

 The courts have recognized the following computer
 functions as well‐understood, routine, and conventional functions when they are
 claimed in a merely generic manner ( e.g., at a high level of
 generality) or as insignificant extra-solution activity.
 

 
 i. Receiving or transmitting data over a
 network, e.g., using the Internet to gather data,
 Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362
 (utilizing an intermediary computer to forward information); TLI
 Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118
 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image
 transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788
 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages
 over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d
 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and
 sends information over a network); but see DDR Holdings, LLC v.
 Hotels.com, L.P., 773 F.3d 1245, 1258, 113 USPQ2d 1097, 1106
 (Fed. Cir. 2014) (“Unlike the claims in Ultramercial, the
 claims at issue here specify how 
 interactions with the Internet are manipulated to yield a desired result‐‐a
 result that overrides the routine and conventional sequence of events
 ordinarily triggered by the click of a hyperlink.” (emphasis added));
 

 ii. Performing repetitive calculations,
 Flook, 437 U.S. at 594, 198 USPQ2d at 199 (recomputing
 or readjusting alarm limit values); Bancorp Services v. Sun
 Life, 687 F.3d 1266, 1278, 103 USPQ2d 1425, 1433 (Fed. Cir.
 2012) (“The computer required by some of Bancorp ’s claims
 is employed only for its most basic function, the performance of repetitive
 calculations, and as such does not impose meaningful limits on the scope of
 those claims.”); 
 

 iii. Electronic recordkeeping, Alice
 Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 225, 110
 USPQ2d 1984 (2014) (creating and maintaining “shadow accounts”);
 Ultramercial, 772 F.3d at 716, 112 USPQ2d at 1755
 (updating an activity log); 
 

 iv. Storing and retrieving information in
 memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793
 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP
 Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93; 
 

 v. Electronically scanning or extracting data
 from a physical document, Content Extraction and Transmission, LLC
 v. Wells Fargo Bank, 776 F.3d 1343, 1348, 113 USPQ2d 1354, 1358
 (Fed. Cir. 2014) (optical character recognition); and 
 

 vi. A Web browser’s back and forward button
 functionality, Internet Patent Corp. v. Active Network,
 Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir.
 2015). 
 

 
 This listing is not meant to imply that all
 computer functions are well‐understood, routine, conventional activities, or that
 a claim reciting a generic computer component performing a generic computer
 function is necessarily ineligible. See e.g. Amdocs (Israel), Ltd. v.
 Openet Telecom, Inc., 841 F.3d 1288, 1316, 120 USPQ2d 1527, 1549
 (Fed. Cir. 2016), BASCOM Global Internet Servs. v. AT&T Mobility
 LLC, 827 F.3d 1341, 1348, 119 USPQ2d 1236, 1241 (Fed. Cir. 2016).
 Courts have held computer‐implemented processes not to be significantly more than
 an abstract idea (and thus ineligible) where the claim as a whole amounts to
 nothing more than generic computer functions merely used to implement an abstract
 idea, such as an idea that could be done by a human analog (i.e., by hand or by
 merely thinking). On the other hand, courts have held computer-implemented
 processes to be significantly more than an abstract idea (and thus eligible),
 where generic computer components are able in combination to perform functions
 that are not merely generic. DDR Holdings, LLC v. Hotels.com,
 L.P., 773 F.3d 1245, 1257-59, 113 USPQ2d 1097, 1105-07 (Fed. Cir.
 2014). 
 

 The courts have recognized the following
 laboratory techniques as well-understood, routine, conventional activity in the
 life science arts when they are claimed in a merely generic manner
 ( e.g., at a high level of generality) or as insignificant
 extra-solution activity: 
 

 
 i. Determining the level of a biomarker in
 blood by any means, Mayo, 566 U.S. at 79, 101 USPQ2d at
 1968; Cleveland Clinic Foundation v. True Health Diagnostics,
 LLC, 859 F.3d 1352, 1362, 123 USPQ2d 1081, 1088 (Fed. Cir.
 2017); 
 

 ii. Using polymerase chain reaction to amplify
 and detect DNA, Genetic Techs. Ltd. v. Merial LLC, 818
 F.3d 1369, 1376, 118 USPQ2d 1541, 1546 (Fed. Cir. 2016); Ariosa
 Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1377, 115
 USPQ2d 1152, 1157 (Fed. Cir. 2015); 
 

 iii. Detecting DNA or enzymes in a sample,
 Sequenom, 788 F.3d at 1377-78, 115 USPQ2d at 1157);
 Cleveland Clinic Foundation 859 F.3d at 1362, 123
 USPQ2d at 1088 (Fed. Cir. 2017); 
 

 iv. Immunizing a patient against a disease,
 Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d
 1057, 1063, 100 USPQ2d 1492, 1497 (Fed. Cir. 2011); 
 

 v. Analyzing DNA to provide sequence information
 or detect allelic variants, Genetic Techs. Ltd., 818 F.3d
 at 1377; 118 USPQ2d at 1546; 
 

 vi. Freezing and thawing cells, Rapid
 Litig. Mgmt. 827 F.3d at 1051, 119 USPQ2d at 1375; 
 

 vii. Amplifying and sequencing nucleic acid
 sequences, University of Utah Research Foundation v. Ambry
 Genetics, 774 F.3d 755, 764, 113 USPQ2d 1241, 1247 (Fed. Cir.
 2014); and 
 

 viii. Hybridizing a gene probe, Ambry
 Genetics, 774 F.3d at 764, 113 USPQ2d at 1247.
 

 
 Below are examples of other types of activity
 that the courts have found to be well-understood, routine, conventional activity
 when they are claimed in a merely generic manner ( e.g., at a
 high level of generality) or as insignificant extra-solution activity: 
 

 
 i. Recording a customer’s order,
 Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1244,
 120 USPQ2d 1844, 1856 (Fed. Cir. 2016); 
 

 ii. Shuffling and dealing a standard deck of
 cards, In re Smith, 815 F.3d 816, 819, 118 USPQ2d 1245,
 1247 (Fed. Cir. 2016); 
 

 iii. Restricting public access to media by
 requiring a consumer to view an advertisement, Ultramercial, Inc.
 v. Hulu, LLC, 772 F.3d 709, 716-17, 112 USPQ2d 1750, 1755-56
 (Fed. Cir. 2014); 
 

 iv. Presenting offers and gathering statistics,
 OIP Techs., 788 F.3d at 1362-63, 115 USPQ2d at
 1092-93;
 

 v. Determining an estimated outcome and setting
 a price, OIP Techs., 788 F.3d at 1362-63, 115 USPQ2d at
 1092-93; and 
 

 vi. Arranging a hierarchy of groups, sorting
 information, eliminating less restrictive pricing information and
 determining the price, Versata Dev. Group, Inc. v. SAP Am.,
 Inc., 793 F.3d 1306, 1331, 115 USPQ2d 1681, 1699 (Fed. Cir.
 2015). 
 

 
 

 
 2106.05(e) Other Meaningful Limitations [R-10.2019]

 The analysis of whether the claim includes other
 meaningful limitations may be relevant for both eligibility analysis Step 2A Prong
 Two, and Step 2B.
 

 The claim should add meaningful limitations beyond
 generally linking the use of the judicial exception to a particular technological
 environment to transform the judicial exception into patent-eligible subject matter.
 The phrase “meaningful limitations” has been used by the courts even before Alice and
 Mayo in various contexts to describe additional elements that provide an inventive
 concept to the claim as a whole. The considerations described in
 MPEP §
 2106.05(a)-(d) are meaningful limitations when they amount
 to significantly more than the judicial exception, or when they integrate a judicial
 exception into a practical application. This broad label signals that there can be
 other considerations besides those described in MPEP §
 2106.05(a)-(d) that when added to a judicial exception
 amount to meaningful limitations that can transform a claim into patent-eligible
 subject matter. 
 

 Diamond v. Diehr provides an
 example of a claim that recited meaningful limitations beyond generally linking the
 use of the judicial exception to a particular technological environment. 450 U.S.
 175, 209 USPQ 1 (1981). In Diehr, the claim was directed to the
 use of the Arrhenius equation (an abstract idea or law of nature) in an automated
 process for operating a rubber-molding press. 450 U.S. at 177-78, 209 USPQ at 4. The
 Court evaluated additional elements such as the steps of installing rubber in a
 press, closing the mold, constantly measuring the temperature in the mold, and
 automatically opening the press at the proper time, and found them to be meaningful
 because they sufficiently limited the use of the mathematical equation to the
 practical application of molding rubber products. 450 U.S. at 184, 187, 209 USPQ at
 7, 8. In contrast, the claims in Alice Corp. v. CLS Bank
 International did not meaningfully limit the abstract idea of mitigating
 settlement risk. 573 U.S. 208, 110 USPQ2d 1976 (2014). In particular, the Court
 concluded that the additional elements such as the data processing system and
 communications controllers recited in the system claims did not meaningfully limit
 the abstract idea because they merely linked the use of the abstract idea to a
 particular technological environment (i.e., “implementation via computers”) or were
 well-understood, routine, conventional activity recited at a high level of
 generality. 573 U.S. at 225-26, 110 USPQ2d at 1984-85.
 

 Classen Immunotherapies Inc. v. Biogen IDEC provides another
 example of claims that recited meaningful limitations. 659 F.3d 1057, 100 USPQ2d 1492
 (Fed. Cir. 2011) (decision on remand from the Supreme Court, which had vacated the
 lower court’s prior holding of ineligibility in view of Bilski v.
 Kappos , 561 U.S. 593, 95 USPQ2d 1001 (2010)). In
 Classen, the claims recited methods that gathered and analyzed
 the effects of particular immunization schedules on the later development of chronic
 immune-mediated disorders in mammals in order to identify a lower risk immunization
 schedule, and then immunized mammalian subjects in accordance with the identified
 lower risk schedule (thereby lowering the risk that the immunized subject would later
 develop chronic immune-mediated diseases). 659 F.3d at 1060-61; 100 USPQ2d at
 1495-96. Although the analysis step was an abstract mental process that collected and
 compared known information, the immunization step was meaningful because it
 integrated the results of the analysis into a specific and tangible method that
 resulted in the method “moving from abstract scientific principle to specific
 application.” 659 F.3d at 1066-68; 100 USPQ2d at 1500-01. In contrast, in
 OIP Technologies, Inc. v. Amazon.com, Inc., the court
 determined that the additional steps to “test prices and collect data based on the
 customer reactions” did not meaningfully limit the abstract idea of offer-based price
 optimization, because the steps were well-understood, routine, conventional
 data-gathering activities. 788 F.3d 1359, 1363-64, 115 USPQ2d 1090, 1093 (Fed. Cir.
 2015). 
 

 With respect to treatment or prophylaxis limitations,
 such as the immunization step in Classen, examiners should note
 that the other meaningful limitations consideration overlaps with the particular
 treatment or prophylaxis consideration that is evaluated in Step 2A Prong Two (see
 MPEP §
 2106.04(d)(2) ).
 

 When evaluating whether additional elements
 meaningfully limit the judicial exception, it is particularly critical that examiners
 consider the additional elements both individually and as a combination. When an
 additional element is considered individually by an examiner, the additional element
 may be enough to qualify as “significantly more” if it meaningfully limits the
 judicial exception, and may also add a meaningful limitation by integrating the
 judicial exception into a practical application. However, even in the situation where
 the individually-viewed elements do not add significantly more or integrate the
 exception, those additional elements when viewed in combination may render the claim
 eligible. See Diamond v. Diehr, 450 U.S. 175, 188, 209 USPQ2d 1, 9
 (1981) (“a new combination of steps in a process may be patentable even though all
 the constituents of the combination were well known and in common use before the
 combination was made”); BASCOM Global Internet Servs. v. AT&T Mobility
 LLC, 827 F.3d 1341, 1349, 119 USPQ2d 1236, 1242 (Fed. Cir. 2016). It is
 important to note that, when appropriate, an examiner may explain on the record why
 the additional elements meaningfully limit the judicial exception. 
 

 

 
 2106.05(f) Mere Instructions To Apply An
 Exception [R-10.2019]
 

 Another consideration when determining whether a
 claim integrates a judicial exception into a practical application in Step 2A Prong
 Two or recites significantly more than a judicial exception in Step 2B is whether the
 additional elements amount to more than a recitation of the words “apply it” (or an
 equivalent) or are more than mere instructions to implement an abstract idea or other
 exception on a computer. As explained by the Supreme Court, in order to make a claim
 directed to a judicial exception patent-eligible, the additional element or
 combination of elements must do “‘more than simply stat[e] the [judicial exception]
 while adding the words ‘apply it’”. Alice Corp. v. CLS Bank, 573
 U.S. 208, 221, 110 USPQ2d 1976, 1982-83 (2014) (quoting Mayo Collaborative
 Servs. V. Prometheus Labs., Inc., 566 U.S. 66, 72, 101 USPQ2d 1961,
 1965). Thus, for example, claims that amount to nothing more than an instruction to
 apply the abstract idea using a generic computer do not render an abstract idea
 eligible. Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983. See
 also 573 U.S. at 224, 110 USPQ2d at 1984 (warning against a § 101 analysis
 that turns on “the draftsman’s art”). 
 

 The Supreme Court has identified additional elements
 as mere instructions to apply an exception in several cases. For instance, in
 Mayo , the Supreme Court concluded that a step of determining
 thiopurine metabolite levels in patients’ blood did not amount to significantly more
 than the recited laws of nature, because this additional element simply instructed
 doctors to apply the laws by measuring the metabolites in any way the doctors (or
 medical laboratories) chose to use. 566 U.S. at 79, 101 USPQ2d at 1968. In
 Alice Corp., the claim recited the concept of intermediated
 settlement as performed by a generic computer. The Court found that the recitation of
 the computer in the claim amounted to mere instructions to apply the abstract idea on
 a generic computer. 573 U.S. at 225-26, 110 USPQ2d at 1984. The Supreme Court also
 discussed this concept in an earlier case, Gottschalk v. Benson, 
 409 U.S. 63, 70, 175 USPQ 673, 676 (1972), where the claim recited a process for
 converting binary-coded-decimal (BCD) numerals into pure binary numbers. The Court
 found that the claimed process had no meaningful practical application except in
 connection with a computer. Benson, 409 U.S. at 71-72, 175 USPQ at
 676. The claim simply stated a judicial exception ( e.g., law of
 nature or abstract idea) while effectively adding words that “apply it” in a
 computer. Id. 

 Requiring more than mere instructions to apply an
 exception does not mean that the claim must be narrow in order to be eligible. The
 courts have identified some broad claims as eligible see, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 120
 USPQ2d 1091 (Fed. Cir. 2016); Thales Visionix Inc. v. United
 States, 850 F.3d. 1343, 121 USPQ2d 1898 (Fed. Cir. 2017), and some
 narrow claims as ineligible see e.g., Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 112 USPQ2d 1750
 (Fed. Cir. 2014); Electric Power Group, LLC v. Alstom, S.A., 830
 F.3d 1350, 119 USPQ2d 1739 (Fed. Cir. 2016). Thus, examiners should carefully
 consider each claim on its own merits, as well as evaluate all other relevant
 considerations, before making a determination of whether an element (or combination
 of elements) is more than mere instructions to apply an exception. For example,
 because this consideration often overlaps with the improvement consideration (see
 MPEP §
 2106.05(a) ), the particular machine and particular
 transformation considerations (see MPEP § 2106.05(b) and
 (c) , respectively), and the well-understood, routine,
 conventional consideration (see MPEP § 2106.05(d) ), evaluation of
 those other considerations may assist examiners in making a determination of whether
 an element (or combination of elements) is more than mere instructions to apply an
 exception. Note, however, that examiners should not evaluate the well-understood,
 routine, conventional consideration in the Step 2A Prong Two analysis, because that
 consideration is only evaluated in Step 2B.
 

 For claim limitations that do not amount to more than
 a recitation of the words “apply it” (or an equivalent), such as mere instructions to
 implement an abstract idea on a computer, examiners should explain why they do not
 meaningfully limit the claim in an eligibility rejection. For example, an examiner
 could explain that implementing an abstract idea on a generic computer, does not
 integrate the abstract idea into a practical application in Step 2A Prong Two or add
 significantly more in Step 2B, similar to how the recitation of the computer in the
 claim in Alice amounted to mere instructions to apply the abstract
 idea of intermediated settlement on a generic computer. For more information on
 formulating a subject matter eligibility rejection. See MPEP §
 2106.07(a) . 
 

 When determining whether a claim simply recites a
 judicial exception with the words “apply it” (or an equivalent), such as mere
 instructions to implement an abstract idea on a computer, examiners may consider the
 following:
 

 (1) Whether the claim recites only the idea of a solution or outcome
 i.e., the claim fails to recite details of how a solution to
 a problem is accomplished. The recitation of claim limitations that attempt
 to cover any solution to an identified problem with no restriction on how the result
 is accomplished and no description of the mechanism for accomplishing the result,
 does not integrate a judicial exception into a practical application or provide
 significantly more because this type of recitation is equivalent to the words “apply
 it”. See Electric Power Group, LLC v. Alstom, S.A., 830 F.3d 1350,
 1356, 119 USPQ2d 1739, 1743-44 (Fed. Cir. 2016); Intellectual Ventures I v.
 Symantec, 838 F.3d 1307, 1327, 120 USPQ2d 1353, 1366 (Fed. Cir. 2016);
 Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343,
 1348, 115 USPQ2d 1414, 1417 (Fed. Cir. 2015). In contrast, claiming a particular
 solution to a problem or a particular way to achieve a desired outcome may integrate
 the judicial exception into a practical application or provide significantly more.
 See Electric Power, 830 F.3d at 1356, 119 USPQ2d at 1743. 
 

 By way of example, in Intellectual Ventures
 I v. Capital One Fin. Corp., 850 F.3d 1332, 121 USPQ2d 1940 (Fed. Cir.
 2017), the steps in the claims described “the creation of a dynamic document based
 upon ‘management record types’ and ‘primary record types.’” 850 F.3d at 1339-40; 121
 USPQ2d at 1945-46. The claims were found to be directed to the abstract idea of
 “collecting, displaying, and manipulating data.” 850 F.3d at 1340; 121 USPQ2d at
 1946. In addition to the abstract idea, the claims also recited the additional
 element of modifying the underlying XML document in response to modifications made in
 the dynamic document. 850 F.3d at 1342; 121 USPQ2d at 1947-48. Although the claims
 purported to modify the underlying XML document in response to modifications made in
 the dynamic document, nothing in the claims indicated what specific steps were
 undertaken other than merely using the abstract idea in the context of XML documents.
 The court thus held the claims ineligible, because the additional limitations
 provided only a result-oriented solution and lacked details as to how the computer
 performed the modifications, which was equivalent to the words “apply it”. 850 F.3d
 at 1341-42; 121 USPQ2d at 1947-48 (citing Electric Power Group., 
 830 F.3d at 1356, 1356, USPQ2d at 1743-44 (cautioning against claims “so result
 focused, so functional, as to effectively cover any solution to an identified
 problem”)). 
 

 Other examples where the courts have found the
 additional elements to be mere instructions to apply an exception, because they
 recite no more than an idea of a solution or outcome include: 
 

 
 i. Remotely accessing user-specific information
 through a mobile interface and pointers to retrieve the information without any
 description of how the mobile interface and pointers accomplish the result of
 retrieving previously inaccessible information, Intellectual Ventures
 v. Erie Indem. Co., 850 F.3d 1315, 1331, 121 USPQ2d 1928, 1939
 (Fed. Cir. 2017); 
 

 ii. A general method of screening emails on a
 generic computer without any limitations that addressed the issues of shrinking
 the protection gap and mooting the volume problem, Intellectual
 Ventures I v. Symantec Corp., 838 F.3d 1307, 1319, 120 USPQ2d
 1353, 1361 (Fed. Cir. 2016); and 
 

 iii. Wireless delivery of out-of-region broadcasting
 content to a cellular telephone via a network without any details of how the
 delivery is accomplished, Affinity Labs of Texas v. DirecTV,
 LLC, 838 F.3d 1253, 1262-63, 120 USPQ2d 1201, 1207 (Fed. Cir.
 2016). 
 

 
 In contrast, other cases have found that additional
 elements are more than “apply it” or are not “mere instructions” when the claim
 recites a technological solution to a technological problem. In DDR
 Holdings, the court found that the additional elements did amount to
 more than merely instructing that the abstract idea should be applied on the
 Internet. DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245,
 1259, 113 USPQ2d 1097, 1107 (Fed. Cir. 2014). The claims at issue specified how
 interactions with the Internet were manipulated to yield a desired result—a result
 that overrode the routine and conventional sequence of events ordinarily triggered by
 the click of a hyperlink. 773 F.3d at 1258; 113 USPQ2d at 1106. In
 BASCOM, the court determined that the claimed combination of
 limitations did not simply recite an instruction to apply the abstract idea of
 filtering content on the Internet. BASCOM Global Internet Servs. v. AT&T
 Mobility, LLC, 827 F.3d 1341, 1350, 119 USPQ2d 1236, 1243 (Fed. Cir.
 2016). Instead, the claim recited a “technology based solution” of filtering content
 on the Internet that overcome the disadvantages of prior art filtering systems. 827
 F.3d at 1350-51, 119 USPQ2d at 1243. Finally, in Thales Visionix, 
 the particular configuration of inertial sensors and the particular method of using
 the raw data from the sensors was more than simply applying a law of nature.
 Thales Visionix, Inc. v. United States, 850 F.3d 1343, 1348-49,
 121 USPQ2d 1898, 1902 (Fed. Cir. 2017). The court found that the claims provided a
 system and method that “eliminate[d] many ‘complications’ inherent in previous
 solutions for determining position and orientation of an object on a moving
 platform.” In other words, the claim recited a technological solution to a
 technological problem. Id. 

 (2) Whether the claim invokes computers or
 other machinery merely as a tool to perform an existing process. Use of a
 computer or other machinery in its ordinary capacity for economic or other tasks
 ( e.g., to receive, store, or transmit data) or simply adding a
 general purpose computer or computer components after the fact to an abstract idea
 ( e.g., a fundamental economic practice or mathematical
 equation) does not integrate a judicial exception into a practical application or
 provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d
 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); TLI
 Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744,
 1748 (Fed. Cir. 2016) (computer server and telephone unit). Similarly, “claiming the
 improved speed or efficiency inherent with applying the abstract idea on a computer”
 does not integrate a judicial exception into a practical application or provide an
 inventive concept. Intellectual Ventures I LLC v. Capital One Bank
 (USA), 792 F.3d 1363, 1367, 115 USPQ2d 1636, 1639 (Fed. Cir. 2015). In
 contrast, a claim that purports to improve computer capabilities or to improve an
 existing technology may integrate a judicial exception into a practical application
 or provide significantly more. McRO, Inc. v. Bandai Namco Games Am.
 Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016);
 Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118
 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). See MPEP §§
 2106.04(d)(1) and 2106.05(a) for a discussion of improvements to the
 functioning of a computer or to another technology or technical field.
 

 TLI Communications provides an
 example of a claim invoking computers and other machinery merely as a tool to perform
 an existing process. The court stated that the claims describe steps of recording,
 administration and archiving of digital images, and found them to be directed to the
 abstract idea of classifying and storing digital images in an organized manner. 823
 F.3d at 612, 118 USPQ2d at 1747. The court then turned to the additional elements of
 performing these functions using a telephone unit and a server and noted that these
 elements were being used in their ordinary capacity ( i.e., the
 telephone unit is used to make calls and operate as a digital camera including
 compressing images and transmitting those images, and the server simply receives
 data, extracts classification information from the received data, and stores the
 digital images based on the extracted information). 823 F.3d at 612-13, 118 USPQ2d at
 1747-48. In other words, the claims invoked the telephone unit and server merely as
 tools to execute the abstract idea. Thus, the court found that the additional
 elements did not add significantly more to the abstract idea because they were simply
 applying the abstract idea on a telephone network without any recitation of details
 of how to carry out the abstract idea. 
 

 Other examples where the courts have found the
 additional elements to be mere instructions to apply an exception, because they do no
 more than merely invoke computers or machinery as a tool to perform an existing
 process include: 
 

 
 i. A commonplace business method or mathematical
 algorithm being applied on a general purpose computer, Alice Corp.
 Pty. Ltd. V. CLS Bank Int’l, 573 U.S. 208, 223, 110 USPQ2d 1976,
 1983 (2014); Gottschalk v. Benson, 409 U.S. 63, 64, 175 USPQ
 673, 674 (1972); Versata Dev. Group, Inc. v. SAP Am., Inc., 
 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); 
 

 ii. Generating a second menu from a first menu and
 sending the second menu to another location as performed by generic computer
 components, Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229,
 1243-44, 120 USPQ2d 1844, 1855-57 (Fed. Cir. 2016); 
 

 iii. A process for monitoring audit log data that is
 executed on a general-purpose computer where the increased speed in the process
 comes solely from the capabilities of the general-purpose computer,
 FairWarning IP, LLC v. Iatric Sys., 839 F.3d 1089, 1095,
 120 USPQ2d 1293, 1296 (Fed. Cir. 2016); 
 

 iv. A method of using advertising as an exchange or
 currency being applied or implemented on the Internet, Ultramercial,
 Inc. v. Hulu, LLC, 772 F.3d 709, 715, 112 USPQ2d 1750, 1754 (Fed.
 Cir. 2014); 
 

 v. Requiring the use of software to tailor
 information and provide it to the user on a generic computer,
 Intellectual Ventures I LLC v. Capital One Bank (USA), 
 792 F.3d 1363, 1370-71, 115 USPQ2d 1636, 1642 (Fed. Cir. 2015); and 
 

 vi. A method of assigning hair designs to balance
 head shape with a final step of using a tool (scissors) to cut the hair,
 In re Brown, 645 Fed. App'x 1014, 1017 (Fed. Cir. 2016)
 (non-precedential).
 

 
 (3) The particularity or generality of the
 application of the judicial exception. A claim having broad applicability
 across many fields of endeavor may not provide meaningful limitations that integrate
 a judicial exception into a practical application or amount to significantly more.
 For instance, a claim that generically recites an effect of the judicial exception or
 claims every mode of accomplishing that effect, amounts to a claim that is merely
 adding the words “apply it” to the judicial exception. See Internet Patents
 Corporation v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d
 1414, 1418 (Fed. Cir. 2015) (The recitation of maintaining the state of data in an
 online form without restriction on how the state is maintained and with no
 description of the mechanism for maintaining the state describes “the effect or
 result dissociated from any method by which maintaining the state is accomplished”
 and does not provide a meaningful limitation because it merely states that the
 abstract idea should be applied to achieve a desired result). See also
 O’Reilly v. Morse, 56 U.S. 62 (1854) (finding ineligible a
 claim for “the use of electromagnetism for transmitting signals at a distance”); The
 Telephone Cases, 126 U.S. 1, 209 (1888) (finding a method of
 “transmitting vocal or other sound telegraphically ... by causing electrical
 undulations, similar in form to the vibrations of the air accompanying the said vocal
 or other sounds,” to be ineligible, because it “monopolize[d] a natural force” and
 “the right to avail of that law by any means whatever.”). 
 

 In contrast, limitations that confine the judicial
 exception to a particular, practical application of the judicial exception may amount
 to significantly more or integrate the judicial exception into a practical
 application. For example, in BASCOM, the combination of additional
 elements, and specifically “the installation of a filtering tool at a specific
 location, remote from the end‐users, with customizable filtering features specific to
 each end user” where the filtering tool at the ISP was able to “identify individual
 accounts that communicate with the ISP server, and to associate a request for
 Internet content with a specific individual account,” were held to be meaningful
 limitations because they confined the abstract idea of content filtering to a
 particular, practical application of the abstract idea. 827 F.3d at 1350-51, 119
 USPQ2d at 1243. 
 

 

 
 2106.05(g) Insignificant Extra-Solution
 Activity [R-10.2019]
 

 Another consideration when determining whether a
 claim integrates the judicial exception into a practical application in Step 2A Prong
 Two or recites significantly more in Step 2B is whether the additional elements add
 more than insignificant extra-solution activity to the judicial exception. The term
 “extra-solution activity” can be understood as activities incidental to the primary
 process or product that are merely a nominal or tangential addition to the claim.
 Extra-solution activity includes both pre-solution and post-solution activity. An
 example of pre-solution activity is a step of gathering data for use in a claimed
 process, e.g., a step of obtaining information about credit card
 transactions, which is recited as part of a claimed process of analyzing and
 manipulating the gathered information by a series of steps in order to detect whether
 the transactions were fraudulent. An example of post-solution activity is an element
 that is not integrated into the claim as a whole, e.g., a printer
 that is used to output a report of fraudulent transactions, which is recited in a
 claim to a computer programmed to analyze and manipulate information about credit
 card transactions in order to detect whether the transactions were fraudulent. 
 

 As explained by the Supreme Court, the addition of
 insignificant extra-solution activity does not amount to an inventive concept,
 particularly when the activity is well-understood or conventional. Parker v.
 Flook, 437 U.S. 584, 588-89, 198 USPQ 193, 196 (1978). In
 Flook, the Court reasoned that “[t]he notion that post-solution
 activity, no matter how conventional or obvious in itself, can transform an
 unpatentable principle into a patentable process exalts form over substance. A
 competent draftsman could attach some form of post-solution activity to almost any
 mathematical formula”. 437 U.S. at 590; 198 USPQ at 197; Id. 
 (holding that step of adjusting an alarm limit variable to a figure computed
 according to a mathematical formula was “post-solution activity”). See also
 Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S.
 66, 79, 101 USPQ2d 1961, 1968 (2012) (additional element of measuring metabolites of
 a drug administered to a patient was insignificant extra-solution activity).
 

 Examiners should carefully consider each claim on
 its own merits, as well as evaluate all other relevant considerations, before making
 a determination of whether an element (or combination of elements) is insignificant
 extra-solution activity. In particular, evaluation of the particular machine and
 particular transformation considerations (see MPEP § 2106.05(b) and
 (c) , respectively), the well-understood, routine,
 conventional consideration (see MPEP § 2106.05(d) ), and the field of
 use and technological environment consideration (see MPEP §
 2106.05(h) ) may assist examiners in making a determination
 of whether an element (or combination of elements) is insignificant extra-solution
 activity. Note, however, that examiners should not evaluate the well-understood,
 routine, conventional consideration in the Step 2A Prong Two analysis, because that
 consideration is only evaluated in Step 2B.
 

 This consideration is similar to factors used in past
 Office guidance (for example, the now superseded Bilski and
 Mayo analyses) that were described as mere data gathering in
 conjunction with a law of nature or abstract idea. When determining whether an
 additional element is insignificant extra-solution activity, examiners may consider
 the following: 
 

 (1) Whether the extra-solution limitation is well
 known. See Bilski v. Kappos, 561 U.S. 593, 611-12, 95
 USPQ2d 1001, 1010 (2010) (well-known random analysis techniques to establish the
 inputs of an equation were token extra-solution activity); Flook, 
 437 U.S. at 593-95, 198 USPQ at 197 (a formula would not be patentable by only
 indicating that is could be usefully applied to existing surveying techniques);
 Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315,
 1328-29, 121 USPQ2d 1928, 1937 (Fed. Cir. 2017) (the use of a well-known XML tag to
 form an index was deemed token extra-solution activity). Because this overlaps with
 the well-understood, routine, conventional consideration, it should not be considered
 in the Step 2A Prong Two extra-solution activity analysis.
 

 (2) Whether the limitation is significant
 ( i.e. it imposes meaningful limits on the claim such that it
 is not nominally or tangentially related to the invention). See 
 Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715-16, 112 USPQ2d 1750,
 1755 (Fed. Cir. 2014) (restricting public access to media was found to be
 insignificant extra-solution activity); Apple, Inc. v. Ameranth,
 Inc., 842 F.3d 1229, 1242, 120 USPQ2d 1844, 1855 (Fed. Cir. 2016) (in
 patents regarding electronic menus, features related to types of ordering were found
 to be insignificant extra-solution activity). This is considered in Step 2A Prong Two
 and Step 2B. 
 

 (3) Whether the limitation amounts to necessary
 data gathering and outputting, ( i.e., all uses of the recited
 judicial exception require such data gathering or data output). See
 Mayo, 566 U.S. at 79, 101 USPQ2d at 1968; OIP Techs.,
 Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1092-93
 (Fed. Cir. 2015) (presenting offers and gathering statistics amounted to mere data
 gathering). This is considered in Step 2A Prong Two and Step 2B.
 

 Below are examples of activities that the courts have
 found to be insignificant extra-solution activity: 
 

 
 • Mere Data Gathering: 
 i. Performing clinical tests on individuals to
 obtain input for an equation, In re Grams, 888 F.2d
 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989); 
 

 ii. Testing a system for a response, the
 response being used to determine system malfunction, In re
 Meyers, 688 F.2d 789, 794; 215 USPQ 193, 196-97 (CCPA 1982);
 
 

 iii. Presenting offers to potential customers
 and gathering statistics generated based on the testing about how
 potential customers responded to the offers; the statistics are then used
 to calculate an optimized price, OIP Technologies, 788
 F.3d at 1363, 115 USPQ2d at 1092-93; 
 

 iv. Obtaining information about transactions
 using the Internet to verify credit card transactions,
 CyberSource v. Retail Decisions, Inc., 654 F.3d
 1366, 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011);
 

 v. Consulting and updating an activity log,
 Ultramercial, 772 F.3d at 715, 112 USPQ2d at 1754;
 and 
 

 vi. Determining the level of a biomarker in
 blood, Mayo, 566 U.S. at 79, 101 USPQ2d at 1968. See
 also PerkinElmer, Inc. v. Intema Ltd., 496 Fed. App'x
 65, 73, 105 USPQ2d 1960, 1966 (Fed. Cir. 2012) (assessing or measuring
 data derived from an ultrasound scan, to be used in a diagnosis). 
 

 
 

 • Selecting a particular data source or type of data to be
 manipulated: 
 i. Limiting a database index to XML tags,
 Intellectual Ventures I LLC v. Erie Indem. Co., 850
 F.3d at 1328-29, 121 USPQ2d at 1937; 
 

 ii. Taking food orders from only table-based
 customers or drive-through customers, Ameranth, 842
 F.3d at 1241-43, 120 USPQ2d at 1854-55; 
 

 iii. Selecting information, based on types of
 information and availability of information in a power-grid environment,
 for collection, analysis and display, Electric Power Group, LLC
 v. Alstom S.A., 830 F.3d 1350, 1354-55, 119 USPQ2d 1739,
 1742 (Fed. Cir. 2016); and 
 

 iv. Requiring a request from a user to view
 an advertisement and restricting public access,
 Ultramercial, 772 F.3d at 715-16, 112 USPQ2d at
 1754.
 

 
 

 • Insignificant application: 
 i. Cutting hair after first determining the
 hair style, In re Brown, 645 Fed. App'x 1014,
 1016-1017 (Fed. Cir. 2016) (non-precedential); and 
 

 ii. Printing or downloading generated menus,
 Ameranth, 842 F.3d at 1241-42, 120 USPQ2d at
 1854-55. 
 

 
 

 
 Some cases have identified insignificant computer
 implementation as an example of insignificant extra-solution activity. See
 e.g., Fort Props., Inc. v. Am. Master Lease LLC, 671 F.3d 1317,
 1323-24, 101 USPQ2d 1785, 1789-90 (Fed. Cir. 2012); Bancorp Servs., LLC v.
 Sun Life Assur. Co. of Canada, 687 F.3d 1266, 1280-81, 103 USPQ2d 1425,
 1434-35 (Fed. Cir. 2012). Other cases have considered these types of limitations as
 mere instructions to apply a judicial exception. See MPEP §
 2106.05(f) for more information about insignificant
 computer implementation.
 

 For claim limitations that add insignificant
 extra-solution activity to the judicial exception ( e.g., mere data
 gathering in conjunction with a law of nature or abstract idea), examiners should
 explain in an eligibility rejection why they do not meaningfully limit the claim. For
 example, an examiner could explain that adding a final step of storing data to a
 process that only recites computing the area of a space (a mathematical relationship)
 does not add a meaningful limitation to the process of computing the area. For more
 information on formulating a subject matter eligibility rejection, see
 MPEP
 § 2106.07(a) . 
 

 

 
 2106.05(h) Field of Use and Technological
 Environment [R-10.2019]
 

 Another consideration when determining whether a
 claim integrates the judicial exception into a practical application in Step 2A Prong
 Two or recites significantly more than a judicial exception in Step 2B is whether the
 additional elements amount to more than generally linking the use of a judicial
 exception to a particular technological environment or field of use. As explained by
 the Supreme Court, a claim directed to a judicial exception cannot be made eligible
 “simply by having the applicant acquiesce to limiting the reach of the patent for the
 formula to a particular technological use.” Diamond v. Diehr, 450
 U.S. 175, 192 n.14, 209 USPQ 1, 10 n. 14 (1981). Thus, limitations that amount to
 merely indicating a field of use or technological environment in which to apply a
 judicial exception do not amount to significantly more than the exception itself, and
 cannot integrate a judicial exception into a practical application. 
 

 The courts often cite to Parker v.
 Flook as providing a classic example of a field of use limitation. See,
 e.g., Bilski v. Kappos, 561 U.S. 593, 612, 95 USPQ2d 1001, 1010
 (2010) (“ Flook established that limiting an abstract idea to one
 field of use or adding token postsolution components did not make the concept
 patentable”) (citing Parker v. Flook, 437 U.S. 584, 198 USPQ 193
 (1978)). In Flook, the claim recited steps of calculating an
 updated value for an alarm limit (a numerical limit on a process variable such as
 temperature, pressure or flow rate) according to a mathematical formula “in a process
 comprising the catalytic chemical conversion of hydrocarbons.” 437 U.S. at 586, 198
 USPQ at 196. Processes for the catalytic chemical conversion of hydrocarbons were
 used in the petrochemical and oil-refining fields. Id. Although
 the applicant argued that limiting the use of the formula to the petrochemical and
 oil-refining fields should make the claim eligible because this limitation ensured
 that the claim did not preempt all uses of the formula, the Supreme Court disagreed.
 437 U.S. at 588-90, 198 USPQ at 197-98. Instead, the additional element in
 Flook regarding the catalytic chemical conversion of
 hydrocarbons was not sufficient to make the claim eligible, because it was merely an
 incidental or token addition to the claim that did not alter or affect how the
 process steps of calculating the alarm limit value were performed. Further, the
 Supreme Court found that this limitation did not amount to an inventive concept. 437
 U.S. at 588-90, 198 USPQ at 197-98. The Court reasoned that to hold otherwise would
 “exalt[] form over substance”, because a competent claim drafter could attach a
 similar type of limitation to almost any mathematical formula. 437 U.S. at 590, 198
 USPQ at 197.
 

 In contrast, the additional elements in
 Diamond v. Diehr as a whole provided eligibility and did not
 merely recite calculating a cure time using the Arrhenius equation “in a rubber
 molding process”. Instead, the claim in Diehr recited specific
 limitations such as monitoring the elapsed time since the mold was closed, constantly
 measuring the temperature in the mold cavity, repetitively calculating a cure time by
 inputting the measured temperature into the Arrhenius equation, and opening the press
 automatically when the calculated cure time and the elapsed time are equivalent. 450
 U.S. at 179, 209 USPQ at 5, n. 5. These specific limitations act in concert to
 transform raw, uncured rubber into cured molded rubber. 450 U.S. at 177-78, 209 USPQ
 at 4. 
 

 A more recent example of a limitation that does no
 more than generally link a judicial exception to a particular technological
 environment is Affinity Labs of Texas v. DirecTV, LLC, 838 F.3d
 1253, 120 USPQ2d 1201 (Fed. Cir. 2016). In Affinity Labs, the
 claim recited a broadcast system in which a cellular telephone located outside the
 range of a regional broadcaster (1) requests and receives network-based content from
 the broadcaster via a streaming signal, (2) is configured to wirelessly download an
 application for performing those functions, and (3) contains a display that allows
 the user to select particular content. 838 F.3d at 1255-56, 120 USPQ2d at 1202. The
 court identified the claimed concept of providing out-of-region access to regional
 broadcast content as an abstract idea, and noted that the additional elements limited
 the wireless delivery of regional broadcast content to cellular telephones (as
 opposed to any and all electronic devices such as televisions, cable boxes,
 computers, or the like). 838 F.3d at 1258-59, 120 USPQ2d at 1204. Although the
 additional elements did limit the use of the abstract idea, the court explained that
 this type of limitation merely confines the use of the abstract idea to a particular
 technological environment (cellular telephones) and thus fails to add an inventive
 concept to the claims. 838 F.3d at 1259, 120 USPQ2d at 1204. 
 

 Examples of limitations that the courts have
 described as merely indicating a field of use or technological environment in which
 to apply a judicial exception include: 
 

 
 i. A step of administering a drug providing
 6-thioguanine to patients with an immune-mediated gastrointestinal disorder,
 because limiting drug administration to this patient population did no more
 than simply refer to the relevant pre-existing audience of doctors who used
 thiopurine drugs to treat patients suffering from autoimmune disorders,
 Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566
 U.S. 66, 78, 101 USPQ2d 1961, 1968 (2012); 
 

 ii. Identifying the participants in a process for
 hedging risk as commodity providers and commodity consumers, because limiting
 the use of the process to these participants did no more than describe how the
 abstract idea of hedging risk could be used in the commodities and energy
 markets, Bilski, 561 U.S. at 595, 95 USPQ2d at 1010; 
 

 iii. Limiting the use of the formula C = 2 (pi) r to
 determining the circumference of a wheel as opposed to other circular objects,
 because this limitation represents a mere token acquiescence to limiting the
 reach of the claim, Flook, 437 U.S. at 595, 198 USPQ at
 199;
 

 iv. Specifying that the abstract idea of monitoring
 audit log data relates to transactions or activities that are executed in a
 computer environment, because this requirement merely limits the claims to the
 computer field, i.e., to execution on a generic computer,
 FairWarning v. Iatric Sys., 839 F.3d 1089, 1094-95, 120
 USPQ2d 1293, 1295 (Fed. Cir. 2016); 
 

 v. Language specifying that the process steps of
 virus screening were used within a telephone network or the Internet, because
 limiting the use of the process to these technological environments did not
 provide meaningful limits on the claim, Intellectual Ventures I v.
 Symantec Corp., 838 F.3d 1307, 1319-20, 120 USPQ2d 1353, 1361
 (2016); 
 

 vi. Limiting the abstract idea of collecting
 information, analyzing it, and displaying certain results of the collection and
 analysis to data related to the electric power grid, because limiting
 application of the abstract idea to power-grid monitoring is simply an attempt
 to limit the use of the abstract idea to a particular technological
 environment, Electric Power Group, LLC v. Alstom S.A., 830
 F.3d 1350, 1354, 119 USPQ2d 1739, 1742 (Fed. Cir. 2016); 
 

 vii. Language informing doctors to apply a law of
 nature (linkage disequilibrium) for purposes of detecting a genetic
 polymorphism, because this language merely informs the relevant audience that
 the law of nature can be used in this manner, Genetic Techs. Ltd. v.
 Merial LLC, 818 F.3d 1369, 1379, 118 USPQ2d 1541, 1549 (Fed. Cir.
 2016);
 

 viii. Language specifying that the abstract idea of
 budgeting was to be implemented using a “communication medium” that broadly
 included the Internet and telephone networks, because this limitation merely
 limited the use of the exception to a particular technological environment,
 Intellectual Ventures I v. Capital One Bank, 792 F.3d
 1363, 1367, 115 USPQ2d 1636, 1640 (Fed. Cir. 2015); 
 

 ix. Specifying that the abstract idea of using
 advertising as currency is used on the Internet, because this narrowing
 limitation is merely an attempt to limit the use of the abstract idea to a
 particular technological environment, Ultramercial, Inc. v. Hulu,
 LLC, 772 F.3d 709, 716, 112 USPQ2d 1750, 1755 (Fed. Cir. 2014);
 and 
 

 x. Requiring that the abstract idea of creating a
 contractual relationship that guarantees performance of a transaction (a) be
 performed using a computer that receives and sends information over a network,
 or (b) be limited to guaranteeing online transactions, because these
 limitations simply attempted to limit the use of the abstract idea to computer
 environments, buySAFE Inc. v. Google, Inc., 765 F.3d 1350,
 1354, 112 USPQ2d 1093, 1095-96 (Fed. Cir. 2014). 
 

 
 Examiners should be aware that the courts often use
 the terms “technological environment” and “field of use” interchangeably, and thus
 for purposes of the eligibility analysis examiners should consider these terms
 interchangeable. Examiners should also keep in mind that this consideration overlaps
 with other considerations, particularly insignificant extra-solution activity (see
 MPEP
 § 2106.05(g) ). For instance, a data gathering step that is
 limited to a particular data source (such as the Internet) or a particular type of
 data (such as power grid data or XML tags) could be considered to be both
 insignificant extra-solution activity and a field of use limitation. See,
 e.g., Ultramercial, 772 F.3d at 716, 112 USPQ2d at 1755
 (limiting use of abstract idea to the Internet); Electric Power, 
 830 F.3d at 1354, 119 USPQ2d at 1742 (limiting application of abstract idea to power
 grid data); Intellectual Ventures I LLC v. Erie Indem. Co., 850
 F.3d 1315, 1328-29, 121 USPQ2d 1928, 1939 (Fed. Cir. 2017) (limiting use of abstract
 idea to use with XML tags). Thus, examiners should carefully consider each claim on
 its own merits, as well as evaluate all other relevant considerations, before making
 a determination on this consideration. 
 

 For claim limitations that generally link the use of
 the judicial exception to a particular technological environment or field of use,
 examiners should explain in an eligibility rejection why they do not meaningfully
 limit the claim. For example, an examiner could explain that employing generic
 computer functions to execute an abstract idea, even when limiting the use of the
 idea to one particular environment, does not add significantly more, similar to how
 limiting the abstract idea in Flook to petrochemical and
 oil-refining industries was insufficient. For more information on formulating a
 subject matter eligibility rejection, see MPEP §
 2106.07(a) . 
 

 

 

 
 2106.06 Streamlined Analysis [R-10.2019]

 For purposes of efficiency in examination, examiners may
 use a streamlined eligibility analysis (Pathway A) when the eligibility of the claim is
 self-evident, e.g., because the claim clearly improves a technology
 or computer functionality. However, if there is doubt as to whether the applicant is
 effectively seeking coverage for a judicial exception itself, the full eligibility
 analysis (the Alice/Mayo test described in MPEP § 2106 ,
 subsection III) should be conducted to determine whether the claim integrates the
 judicial exception into a practical application or recites significantly more than the
 judicial exception.
 

 The results of the streamlined analysis will always be
 the same as the full analysis, thus the streamlined analysis is not a means of avoiding
 a finding of ineligibility that would occur if a claim were to undergo the full
 eligibility analysis. Similarly, a claim that qualifies as eligible after Step 2A
 (Pathway B) or Step 2B (Pathway C) of the full analysis would also be eligible if the
 streamlined analysis (Pathway A) were applied to that claim. It may not be apparent that
 an examiner employed the streamlined analysis because the result is a conclusion that
 the claim is eligible, and there will be no rejection of the claim on eligibility
 grounds. In practice, the record may reflect the conclusion of eligibility simply by the
 absence of an eligibility rejection or may include clarifying remarks, when appropriate. 
 

 In the context of the flowchart in MPEP § 2106 ,
 subsection III, if, when viewed as a whole, the eligibility of the claim is self-evident
 (e.g., because the claim clearly improves a technology or computer functionality), the
 claim is eligible at Pathway A, thereby concluding the eligibility analysis. 
 

 
 2106.06(a) Eligibility is Self Evident [R-08.2017]

 A streamlined eligibility analysis can be used for a
 claim that may or may not recite a judicial exception but, when viewed as a whole,
 clearly does not seek to tie up any judicial exception such that others cannot
 practice it. Such claims do not need to proceed through the full analysis herein as
 their eligibility will be self-evident. On the other hand, a claim that does not
 qualify as eligible after Step 2B of the full analysis would not be suitable for the
 streamlined analysis, because the claim lacks self‐evident eligibility. 
 

 For instance, a claim directed to a complex
 manufactured industrial product or process that recites meaningful limitations along
 with a judicial exception may sufficiently limit its practical application so that a
 full eligibility analysis is not needed. As an example, a robotic arm assembly having
 a control system that operates using certain mathematical relationships is clearly
 not an attempt to tie up use of the mathematical relationships and would not require
 a full analysis to determine eligibility. Also, a claim that recites a nature-based
 product, but clearly does not attempt to tie up the nature-based product, does not
 require a markedly different characteristics analysis to identify a “product of
 nature” exception. As an example, a claim directed to an artificial hip prosthesis
 coated with a naturally occurring mineral is not an attempt to tie up the mineral.
 Similarly, claimed products that merely include ancillary nature-based components,
 such as a claim that is directed to a cellphone with an electrical contact made of
 gold or a plastic chair with wood trim, would not require analysis of the
 nature-based component to determine whether the claims are directed to a “product of
 nature” exception because such claims do not attempt to improperly tie up the
 nature-based product. 
 

 

 
 2106.06(b) Clear Improvement to a Technology or to
 Computer Functionality [R-08.2017]
 

 As explained by the Federal Circuit, some
 improvements to technology or to computer functionality are not abstract when
 appropriately claimed, and thus claims to such improvements do not always need to
 undergo the full eligibility analysis. Enfish, LLC v. Microsoft
 Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1689 (Fed. Cir. 2016).
 MPEP §
 2106.05(a) provides details regarding improvements to a
 technology or computer functionality. 
 

 For instance, claims directed to clear improvements
 to computer-related technology do not need the full eligibility analysis.
 Enfish, 822 F.3d at 1339, 118 USPQ2d at 1691-92 (claims to a
 self-referential table for a computer database held eligible at step 1 of the
 Alice/Mayo test as not directed to an abstract idea). Claims
 directed to improvements to other technologies or technological processes, beyond
 computer improvements, may also avoid the full eligibility analysis. McRO,
 Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1316, 120 USPQ2d
 1091, 1103 (Fed. Cir. 2016) (claims to automatic lip synchronization and facial
 expression animation found eligible at Step 1 of the Alice/Mayo 
 test as directed to an improvement in computer-related technology). In these cases,
 when the claims were viewed as a whole, their eligibility was self-evident based on
 the clear improvement, so no further analysis was needed. Although the Federal
 Circuit held these claims eligible at Step 2A as not being directed to abstract
 ideas, it would be reasonable for an examiner to have found these claims eligible at
 Pathway A based on the clear improvement, or at Pathway B (Step 2A) as not being
 directed to an abstract idea. 
 

 If the claims are a “close call” such that it is
 unclear whether the claims improve technology or computer functionality, a full
 eligibility analysis should be performed to determine eligibility. See
 BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341,
 1349, 119 USPQ2d 1236, 1241 (Fed Cir. 2016). Only when the claims clearly improve
 technology or computer functionality, or otherwise have self-evident eligibility,
 should the streamlined analysis be used. For example, because the claims in
 BASCOM described the concept of filtering content, which is a
 method of organizing human behavior previously found to be abstract, the Federal
 Circuit considered them to present a “close call” in the first step of the
 Alice/Mayo test (Step 2A), and thus proceeded to the second
 step of the Alice/Mayo test (Step 2B) to determine their
 eligibility. Id. Although the Federal Circuit held these claims
 eligible at Step 2B (Pathway C) because they presented a “technology-based solution”
 of filtering content on the Internet that overcame the disadvantages of prior art
 filtering systems and that amounted to significantly more than the recited abstract
 idea, it also would be reasonable for an examiner to have found these claims eligible
 at Pathway A or B if the examiner had considered the technology-based solution to be
 an improvement to computer functionality. 
 

 

 

 
 2106.07 Formulating and Supporting Rejections For Lack
 Of Subject Matter Eligibility [R-10.2019]
 

 Eligibility rejections must be based on failure to
 comply with the substantive law under 35 U.S.C. 101 as interpreted by
 judicial precedent. The substantive law on eligibility is discussed in
 MPEP §§
 2106.03 through 2106.06 .
 Examination guidance, training, and explanatory examples discuss the substantive law and
 establish the policies and procedures to be followed by examiners in evaluating patent
 applications for compliance with the substantive law, but do not serve as a basis for a
 rejection. Accordingly, while it would be acceptable for applicants to cite training
 materials or examples in support of an argument for finding eligibility in an
 appropriate factual situation, applicants should not be required to model their claims
 or responses after the training materials or examples to attain eligibility.
 

 When evaluating a claimed invention for compliance with
 the substantive law on eligibility, examiners should review the record as a whole
 ( e.g., the specification, claims, the prosecution history, and any
 relevant case law precedent or prior art) before reaching a conclusion with regard to
 whether the claimed invention sets forth patent eligible subject matter. The evaluation
 of whether the claimed invention qualifies as patent-eligible subject matter should be
 made on a claim-by-claim basis, because claims do not automatically rise or fall with
 similar claims in an application. For example, even if an independent claim is
 determined to be ineligible, the dependent claims may be eligible because they add
 limitations that integrate the judicial exception into a practical application or amount
 to significantly more than the judicial exception recited in the independent claim. And
 conversely, even if an independent claim is determined to be eligible, a dependent claim
 may be ineligible because it adds a judicial exception without also adding limitations
 that integrate the judicial exception or provide significantly more. Thus, each claim in
 an application should be considered separately based on the particular elements recited
 therein.
 

 If the evaluation of the claimed invention results in a
 conclusion that it is more likely than not that the claim as a whole does not satisfy
 both criteria for eligibility (Step 1: NO and/or Step 2B: NO), then examiners should
 formulate an appropriate rejection of that claim under Step 1 and/or Step 2B. The
 rejection should set forth a prima facie case of ineligibility under
 the substantive law. The concept of the prima facie case is a
 procedural tool of patent examination, which allocates the burdens going forward between
 the examiner and applicant. In particular, the initial burden is on the examiner to
 explain why a claim or claims are ineligible for patenting clearly and specifically, so
 that applicant has sufficient notice and is able to effectively respond.
 

 When an examiner determines a claim does not fall
 within a statutory category (Step 1: NO), the rejection should provide an explanation of
 why the claim does not fall within one of the four statutory categories of invention.
 See MPEP §
 2106.03 for a discussion of Step 1 and the statutory
 categories of invention. 
 

 When an examiner determines that a claim is directed to
 a judicial exception (Step 2A: YES) and does not provide an inventive concept (Step 2B:
 NO), the rejection should provide an explanation for each part of the Step 2 analysis.
 For example, the rejection should identify the judicial exception by referring to what
 is recited ( i.e., set forth or described) in the claim and explain
 why it is considered an exception, identify any additional elements (specifically point
 to claim features/limitations/steps) recited in the claim beyond the identified judicial
 exception, and explain the reason(s) that the additional elements taken individually,
 and also taken as a combination, 1) do not integrate the judicial exception into a
 practical application and 2) do not result in the claim as a whole amounting to
 significantly more than the judicial exception. See MPEP §
 2106.04 et seq. for a discussion of Step 2A and the judicial exceptions,
 MPEP §
 2106.05 et seq. for a discussion of Step 2B and the search for an inventive
 concept, and MPEP § 2106.07(a) for more information
 on formulating an ineligibility rejection. 
 

 If the evaluation of the claimed invention results in a
 conclusion that it is more likely than not that the claimed invention falls within a
 statutory category (Step 1: YES) and is either not directed to a judicial exception
 (Step 2A: NO) or is directed to a judicial exception and amounts to significantly more
 than the judicial exception (Step 2B: YES), then the examiner should not reject the
 claim. When evaluating a response by applicant to a subject matter eligibility
 rejection, examiners must carefully consider all of applicant’s arguments and evidence
 presented to rebut the rejection. If applicant properly challenges the examiner’s
 findings, the rejection should be withdrawn or, if the examiner deems it appropriate to
 maintain the rejection, a rebuttal must be provided in the next Office action. This is
 discussed in greater detail in MPEP § 2106.07(b) . 
 

 
 2106.07(a) Formulating a Rejection For Lack of Subject
 Matter Eligibility [R-07.2022]
 

 After determining what has been invented and
 establishing the broadest reasonable interpretation of the claimed invention (see
 MPEP §
 2111 ), the eligibility of each claim should be evaluated as
 a whole using the analysis detailed in MPEP § 2106 . If it is determined
 that the claim does not recite eligible subject matter, a rejection under
 35 U.S.C.
 101 is appropriate. When making the rejection, the Office
 action must provide an explanation as to why each claim is unpatentable, which must
 be sufficiently clear and specific to provide applicant sufficient notice of the
 reasons for ineligibility and enable the applicant to effectively respond. 
 

 Subject matter eligibility rejections under Step 1
 are discussed in MPEP § 2106.03 .
 

 A subject matter eligibility rejection under Step 2
 should provide an explanation for each part of the Step 2 analysis: 
 

 
 • For Step 2A Prong One, the rejection should
 identify the judicial exception by referring to what is recited 
 ( i.e., set forth or described) in the claim and
 explain why it is considered an exception. For example, if the
 claim is directed to an abstract idea , the rejection should
 identify the abstract idea as it is recited ( i.e., set forth
 or described) in the claim and explain why it is an abstract idea. Similarly,
 if the claim is directed to a law of nature or a natural
 phenomenon , the rejection should identify the law of nature or
 natural phenomenon as it is recited ( i.e., set forth or
 described) in the claim and explain using a reasoned rationale why it is
 considered a law of nature or natural phenomenon.
 

 • For Step 2A Prong Two, the rejection should
 identify any additional elements (specifically point to claim
 features/limitations/steps) recited in the claim beyond the identified judicial
 exception; and evaluate the integration of the judicial exception
 into a practical application by explaining that 1) there are no
 additional elements in the claim; or 2) the claim as a whole, looking at the
 additional elements individually and in combination, does not integrate the
 judicial exception into a practical application using the considerations set
 forth in MPEP §§ 2106.04(d) ,
 2106.05(a) - (c) and (e) - (h) . Examiners should give weight to all of the
 claimed additional elements in Prong Two, even if those elements represent
 well-understood, routine, conventional activity.
 

 • For Step 2B, the rejection should
 explain why the additional elements, taken individually and in
 combination, do not result in the claim, as a whole, amounting to significantly
 more than the identified judicial exception. For instance, when the examiner
 has concluded that certain claim elements recite well understood, routine,
 conventional activities in the relevant field, the examiner must expressly
 support the rejection in writing with one of the four options specified in
 Subsection III.
 

 
 Under the principles of compact prosecution,
 regardless of whether a rejection under 35 U.S.C. 101 is made based on
 lack of subject matter eligibility, a complete examination should be made for every
 claim under each of the other patentability requirements: 35 U.S.C.
 102 , 103 , 112 , and
 101 (utility, inventorship and double patenting) and
 non-statutory double patenting. Thus, examiners should state all non-cumulative
 reasons and bases for rejecting claims in the first Office action. 
 

 I. WHEN MAKING A REJECTION, IDENTIFY
 AND EXPLAIN THE JUDICIAL EXCEPTION RECITED IN THE CLAIM (STEP 2A PRONG
 ONE) A subject matter eligibility rejection should
 point to the specific claim limitation(s) that recites ( i.e., 
 sets forth or describes) the judicial exception. The rejection must explain why
 those claim limitations set forth or describe a judicial exception
 ( e.g., a law of nature). Where the claim describes, but does
 not expressly set forth, the judicial exception, the rejection must also explain
 what subject matter those limitations describe, and why the described subject
 matter is a judicial exception. See MPEP §
 2106.04 for more information about Step 2A of the
 eligibility analysis. 
 

 When the examiner has determined the claim recites
 an abstract idea , the rejection should identify the abstract idea as
 it is recited ( i.e., set forth or described) in the claim, and
 explain why it falls within one of the groupings of abstract ideas
 ( i.e., mathematical concepts, mental processes, or certain
 methods of organizing human activity) enumerated in MPEP §
 2106.04(a)(2) . Alternatively, the examiner should
 provide justification for why a specific limitation(s) recited in the claim is
 being treated as an abstract idea if it does not fall within the groupings of
 abstract ideas in accordance with the “tentative abstract idea” procedure (see
 MPEP § 2106.04(a)(3) ). While not required, this
 explanation or justification may include citing to an appropriate court decision
 that supports the identification of the subject matter recited in the claim
 language as an abstract idea within one of the groupings. Examiners should be
 familiar with any cited decision relied upon in making or maintaining a rejection
 to ensure that the rejection is reasonably tied to the facts of the case and to
 avoid relying upon language taken out of context. Examiners should not go beyond
 those concepts that are enumerated as abstract ideas in MPEP §
 2106.04 , unless they are identifying a tentative
 abstract idea in the claim, and should avoid relying upon or citing
 non-precedential decisions unless the facts of the application under examination
 uniquely match the facts at issue in the non-precedential decisions. Examiners are
 reminded that a chart of court decisions is available on the USPTO’s Internet
 website ( www.uspto.gov/ PatentEligibility ). 
 

 
 Sample explanation: The
 claim recites the step of comparing collected information to a predefined
 threshold, which is an act of evaluating information that can be practically
 performed in the human mind. Thus, this step is an abstract idea in the “mental
 process” grouping.
 

 

 When the examiner has determined the claim recites
 a law of nature or a natural phenomenon , the rejection
 should identify the law of nature or natural phenomenon as it is recited
 ( i.e., set forth or described) in the claim and explain
 using a reasoned rationale why it is considered a law of nature or natural
 phenomenon. See MPEP § 2106.04(b) for more
 information about laws of nature and natural phenomena. 
 

 
 Sample explanation: The
 claim recites the correlation of X, and X is a law of nature because it
 describes a consequence of natural processes in the human body, e.g., the
 naturally-occurring relationship between the presence of Y and the
 manifestation of Z. 
 

 

 
 Sample explanation: The
 claim recites X, which is a natural phenomenon because it occurs in nature and
 exists in principle apart from any human action. 
 

 

 When the examiner has determined the claim recites
 a product of nature, the rejection should identify the exception as
 it is recited ( i.e., set forth or described) in the claim, and
 explain using a reasoned rationale why the product does not have markedly
 different characteristics from its naturally occurring counterpart in its natural
 state. See MPEP § 2106.04(b) for more
 information about products of nature, and MPEP §
 2106.04(c) for more information about the markedly
 different characteristics analysis. 
 

 
 Sample explanation: The
 claim recites X, which as explained in the specification was isolated from
 naturally occurring Y. X is a nature-based product, so it is compared to its
 closest naturally occurring counterpart (X in its natural state) to determine
 if it has markedly different characteristics. Because there is no indication in
 the record that isolation of X has resulted in a marked difference in
 structure, function, or other properties as compared to its counterpart, X is a
 product of nature exception. 
 

 
 II. WHEN MAKING A REJECTION, EXPLAIN
 WHY THE ADDITIONAL CLAIM ELEMENTS DO NOT RESULT IN THE CLAIM AS A WHOLE
 INTEGRATING THE JUDICIAL EXCEPTION INTO A PRACTICAL APPLICATION OR AMOUNTING TO
 SIGNIFICANTLY MORE THAN THE JUDICIAL EXCEPTION (STEP 2A PRONG TWO AND STEP
 2B) After identifying the judicial exception in the
 rejection, identify any additional elements (features/limitations/steps) recited
 in the claim beyond the judicial exception and explain why they do not integrate
 the judicial exception into a practical application and do not add significantly
 more to the exception. The explanation should address the additional elements both
 individually and as a combination when determining whether the claim as whole
 recites eligible subject matter. It is important to remember that a new
 combination of steps in a process may be patent eligible even though all the steps
 of the combination were individually well known and in common use before the
 combination was made. Diamond v. Diehr, 450 U.S. 175, 188, 209
 USPQ 1, 9 (1981). Thus, it is particularly critical to address the combination of
 additional elements, because while individually-viewed elements may not appear to
 integrate an exception into a practical application or add significantly more,
 those additional elements when viewed in combination may amount to significantly
 more than the exception by meaningfully limiting the judicial exception. See
 MPEP § 2106.05 for more information about Step 2B of
 the eligibility analysis.
 

 A rejection should be made only if it is readily
 apparent to an examiner relying on the examiner's expertise in the art in the Step
 2A Prong Two inquiry and Step 2B inquiry that the additional elements do not
 integrate the exception into a practical application and do not amount to claiming
 significantly more than the recited judicial exception. When making a rejection,
 it is important for the examiner to explain the rationale underlying the
 conclusion so that applicant can effectively respond. On the other hand, when
 appropriate, the examiner should explain why the additional elements integrate an
 exception into a practical application or provide an inventive concept by adding a
 meaningful limitation to the claimed exception. See MPEP §§
 2106.04(d) and 2106.05 for a listing of considerations that qualify,
 and to not qualify, as integrating an exception or providing significantly more
 than an exception, and MPEP § 2106.07(c) for more
 information on clarifying the record when a claim is found eligible.
 

 In the Step 2B inquiry, if the examiner has
 concluded that particular claim limitations are well understood, routine,
 conventional activities (or elements) to those in the relevant field, the
 rejection should support this conclusion in writing with a factual determination
 in accordance with Subsection III below. See MPEP §
 2106.05(d) for more information about well understood,
 routine, conventional activities and elements, and Subsection III below for more
 information about how to support a conclusion that a claim limitation is well
 understood, routine, conventional activity.
 

 For claim limitations that recite a generic
 computer component performing generic computer functions at a high level of
 generality, such as using the Internet to gather data, examiners can explain why
 these generic computing functions do not meaningfully limit the claim. Examiners
 should keep in mind that the courts have held computer-implemented processes to be
 significantly more than an abstract idea (and thus eligible), where generic
 computer components are able in combination to perform functions that are not
 merely generic. DDR Holdings, LLC v. Hotels.com, LP, 773 F.3d
 1245, 1258-59, 113 USPQ2d 1097, 1106-07 (Fed. Cir. 2014). See
 MPEP § 2106.05(f) for more information about generic
 computing functions that the courts have found to be mere instructions to
 implement a judicial exception on a computer, and MPEP §
 2106.05(d) for more information about well understood,
 routine, conventional activities and elements (a relevant consideration only in
 Step 2B).
 

 For claim limitations that add insignificant
 extra-solution activity to the judicial exception (e.g., mere data gathering in
 conjunction with a law of nature or abstract idea), or that generally link the use
 of the judicial exception to a particular technological environment or field of
 use, examiners should explain why they do not meaningfully limit the claim. For
 example, adding a final step of storing data to a process that only recites
 computing the area of a two dimensional space (a mathematical relationship) does
 not add a meaningful limitation to the process of computing the area. As another
 example, employing well-known computer functions to execute an abstract idea, even
 when limiting the use of the idea to one particular environment, does not
 integrate the exception into a practical application or add significantly more,
 similar to how limiting the computer implemented abstract idea in Flook to
 petrochemical and oil-refining industries was insufficient. See e.g.,
 Parker v. Flook, 437 U.S. 584, 588-90, 198 USPQ 193, 197-98 (1978)
 (limiting use of mathematical formula to use in particular industries did not
 amount to an inventive concept). See MPEP §
 2106.05(g) for more information about insignificant
 extra-solution activity, and MPEP § 2106.05(h) for more
 information about generally linking use of a judicial exception to a particular
 technological environment or field of use.
 

 In the event a rejection is made, it is a best
 practice for the examiner to consult the specification to determine if there are
 elements that could be added to the claim to make it eligible. If so, the examiner
 should identify those elements in the Office action and suggest them as a way to
 overcome the rejection. 
 

 III. EVIDENTIARY REQUIREMENTS IN MAKING
 A § 101 REJECTION The courts consider the determination of whether a
 claim is eligible (which involves identifying whether an exception such as an
 abstract idea is being claimed) to be a question of law. Rapid Litig.
 Mgmt. v. CellzDirect, 827 F.3d 1042, 1047, 119 USPQ2d 1370, 1372
 (Fed. Cir. 2016); OIP Techs. v. Amazon.com, 788 F.3d 1359,
 1362, 115 USPQ2d 1090, 1092 (Fed. Cir. 2015); DDR Holdings v.
 Hotels.com, 773 F.3d 1245, 1255, 113 USPQ2d 1097, 1104 (Fed. Cir.
 2014); In re Roslin Institute (Edinburgh), 750 F.3d 1333, 1335,
 110 USPQ2d 1668, 1670 (Fed. Cir. 2014); In re Bilski, 545 F.3d
 943, 951, 88 USPQ2d 1385, 1388 (Fed. Cir. 2008) ( en banc ),
 aff’d by Bilski v. Kappos, 561 U.S. 593, 95 USPQ2d 1001 (2010).
 Thus, the court does not require “evidence” that a claimed concept is a judicial
 exception, and generally decides the legal conclusion of eligibility without
 resolving any factual issues. FairWarning IP, LLC v. Iatric
 Sys., 839 F.3d 1089, 1097, 120 USPQ2d 1293, 1298 (Fed. Cir. 2016)
 (citing Genetic Techs. Ltd. v. Merial LLC, 818 F.3d 1369, 1373,
 118 USPQ2d 1541, 1544 (Fed. Cir. 2016)); OIP Techs., 788 F.3d
 at 1362, 115 USPQ2d at 1092; Content Extraction & Transmission LLC v.
 Wells Fargo Bank, N.A., 776 F.3d 1343, 1349, 113 USPQ2d 1354, 1359
 (Fed. Cir. 2014). In some cases, however, the courts have characterized the issue
 of whether additional elements are well-understood, routine, conventional activity
 as an underlying factual issue upon which the legal conclusion of eligibility may
 be based. See, e.g., Interval Licensing LLC v. AOL, Inc., 896
 F.3d. 1335, 1342, 127 USPQ2d 1553, 1557 (Fed. Cir. 2018) (patent eligibility is a
 question of law that may contain underlying issues of fact), Berkheimer
 v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir.
 2018) (issue of whether additional elements are well-understood, routine,
 conventional activity is factual).
 

 When performing the analysis at Step 2A Prong One,
 it is sufficient for the examiner to provide a reasoned rationale that identifies
 the judicial exception recited in the claim and explains why it is considered a
 judicial exception (e.g., that the claim limitation(s) falls within one of the
 abstract idea groupings). Therefore, there is no requirement for the examiner to
 rely on evidence, such as publications or an affidavit or declaration under
 37 CFR
 1.104(d)(2) , to find that a claim recites a judicial
 exception. Cf. Affinity Labs of Tex., LLC v. Amazon.com Inc., 
 838 F.3d 1266, 1271-72, 120 USPQ2d 1210, 1214-15 (Fed. Cir. 2016) (affirming
 district court decision that identified an abstract idea in the claims without
 relying on evidence); OIP Techs., Inc. v. Amazon.com, Inc., 788
 F.3d 1359, 1362-64, 115 USPQ2d 1090, 1092-94 (Fed. Cir. 2015) (same);
 Content Extraction & Transmission LLC v. Wells Fargo
 Bank, N.A., 776 F.3d 1343, 1347, 113 USPQ2d 1354, 1357-58 (Fed. Cir.
 2014) (same).
 

 At Step 2A Prong Two or Step 2B, there is no
 requirement for evidence to support a finding that the exception is not integrated
 into a practical application or that the additional elements do not amount to
 significantly more than the exception unless the examiner asserts that additional
 limitations are well-understood, routine, conventional activities in Step 2B. 
 

 Examiners should not assert that an additional
 element (or combination of elements) is well-understood, routine, or conventional
 unless the examiner finds, and expressly supports the rejection in writing with
 one or more of the following: 
 

 
 (A) A citation to an express statement in the
 specification or to a statement made by an applicant during prosecution that
 demonstrates the well-understood, routine, conventional nature of the
 additional element(s). A specification demonstrates the well-understood,
 routine, conventional nature of additional elements when it describes the
 additional elements as well-understood or routine or conventional (or an
 equivalent term), as a commercially available product, or in a manner that
 indicates that the additional elements are sufficiently well-known that the
 specification does not need to describe the particulars of such additional
 elements to satisfy 35 U.S.C. 112(a) . A
 finding that an element is well-understood, routine, or conventional cannot
 be based only on the fact that the specification is silent with respect to
 describing such element.
 

 (B) A citation to one or more of the court
 decisions discussed in MPEP § 2106.05(d) ,
 subsection II, as noting the well-understood, routine, conventional nature
 of the additional element(s). Examiners should be careful to ensure the
 claim limitations before the examiner are the same as those found to be
 well-understood, routine, conventional by the courts. The additional
 elements under examination should be recited in the same manner, meaning
 they should be recited at the same high level of generality as in those
 court decisions. It is not enough that the additional elements are similar
 to the elements at issue in those cases. In addition, the court decisions
 discussed in MPEP § 2106.05(d) ,
 subsection II, are not meant to imply that all computer functions are
 well-understood, routine, conventional functions, or that a claim reciting a
 generic computer component performing a generic computer function is
 necessarily ineligible. Examiners should keep in mind that the courts have
 held computer-implemented processes to be significantly more than an
 abstract idea (and thus eligible), where generic computer components are
 able in combination to perform functions that are not merely generic.
 DDR Holdings, LLC v. Hotels.com, LP, 773 F.3d 1245,
 1258-59, 113 USPQ2d 1097, 1106-07 (Fed. Cir. 2014). See
 MPEP § 2106.05(f) for more
 information about generic computing functions that the courts have found to
 be mere instructions to implement a judicial exception on a computer.
 

 (C) A citation to a publication that
 demonstrates the well-understood, routine, conventional nature of the
 additional element(s). An appropriate publication could include a book,
 manual, review article, or other source that describes the state of the art
 and discusses what is well-known and in common use in the relevant industry.
 It does not include all items that might otherwise qualify as a "printed
 publication" as used in 35 U.S.C. 102 . Whether
 something is disclosed in a document that is considered a "printed
 publication" under 35 U.S.C. 102 is a
 distinct inquiry from whether something is well-known, routine, conventional
 activity. A document may be a printed publication but still fail to
 establish that something it describes is well-understood, routine,
 conventional activity. See Exergen Corp. v. Kaz USA, 725
 Fed. App’x. 959, 966 (Fed. Cir. 2018) (the single copy of a thesis, written
 in German and located in a German university library, considered to be a
 "printed publication" in In re Hall, 781 F.2d 897, 228
 USPQ 453 (Fed. Cir. 1986) "would not suffice to establish that something is
 'well-understood, routine, and conventional activity previously engaged in
 by scientists who work in the field'"). The nature of the publication and
 the description of the additional elements in the publication would need to
 demonstrate that the additional elements are widely prevalent or in common
 use in the relevant field, comparable to the types of activity or elements
 that are so well-known that they do not need to be described in detail in a
 patent application to satisfy 35 U.S.C. 112(a) . For
 example, while U.S. patents and published applications are publications,
 merely finding the additional element in a single patent or published
 application would not be sufficient to demonstrate that the additional
 element is well-understood, routine, conventional, unless the patent or
 published application demonstrates that the additional element is widely
 prevalent or in common use in the relevant field.
 

 (D) A statement that the examiner is taking
 official notice of the well-understood, routine, conventional nature of the
 additional element(s). This option should be used only when examiners are
 certain, based upon their personal knowledge, that the additional element(s)
 represents well-understood, routine, conventional activity engaged in by
 those in the relevant art, in that the additional elements are widely
 prevalent or in common use in the relevant field, comparable to the types of
 activity or elements that are so well-known that they do not need to be
 described in detail in a patent application to satisfy 35 U.S.C.
 112(a) . For example, the examiner could take official
 notice that a generic computer component performing generic computer
 functions at a high level of generality, such as using the Internet to
 gather data, is well-understood, routine, conventional. Procedures for
 taking official notice and addressing an applicant’s challenge to official
 notice are discussed in MPEP § 2144.03 . 
 

 
 
 2106.07(a)(1) Form Paragraphs for use in Lack of
 Subject Matter Eligibility Rejections [R-01.2024]
 

 Use form paragraphs 7.04.01 ,
 7.05 ,
 and 7.05.01 for rejections based on a failure to
 claim an invention that falls within any of the statutory categories of invention
 (i.e., the claim is not to at least one of the four statutory categories of
 invention and is thus rejected at Step 1 of the eligibility analysis). As a
 reminder, it is not necessary to identify a single category into which a claim
 falls, so long as it is clear that the claim falls into at least one category. See
 MPEP § 2106.03 .
 

 Use form paragraphs 7.04.01 ,
 7.05 ,
 and 7.05.016 for rejections based on a failure to
 claim an invention that is directed to patent-eligible subject matter, i.e., the
 claim is directed to a judicial exception without providing an inventive
 concept/significantly more, and is thus rejected at Step 2B of the eligibility
 analysis. If the judicial exception to which the claim is directed is a "tentative
 abstract idea," i.e., an abstract idea that does not fall within any of the
 groupings of abstract ideas discussed in MPEP §
 2106.04(a)(2) , then the Step 2B rejection must also use
 form paragraph 7.05.017 (in addition to form paragraphs
 7.04.01 , 7.05 , and
 7.05.016 ) and include the TC Director's
 signature.
 

 ¶ 7.04.01 Statement of Statutory Basis, 35 U.S.C. 101

 35 U.S.C. 101 reads as follows:

 Whoever invents or discovers any new and useful process, machine,
 manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a
 patent therefor, subject to the conditions and requirements of this title.
 

 Examiner Note:
 
 This form paragraph must precede the first use of
 35 U.S.C.
 101 in all first actions on the merits and final rejections. 
 
 
 
 

 ¶ 7.05 Rejection, 35 U.S.C. 101, -Heading Only- (Utility, Nonstatutory,
 Inoperative)
 

 Claim [1] rejected under 35 U.S.C. 101 because
 

 Examiner Note:
 
 1. This form paragraph must be preceded by form paragraph
 7.04.01 in
 first actions and final rejections.
 

 2. This form paragraph must be followed by a detailed explanation of
 the grounds of rejection using one or more of form paragraphs
 7.05.01 ,
 7.05.016 ,
 7.05.017 ,
 7.05.02 ,
 7.05.03 ,
 or another appropriate reason.
 

 3. See MPEP §§ 2105 - 2107.03 for additional guidance.
 
 
 

 ¶ 7.05.01 Rejection, 35 U.S.C. 101, Nonstatutory (Not One of the Four
 Statutory Categories)
 

 the claimed invention is directed to nonstatutory subject matter. The
 claim(s) does/do not fall within at least one of the four categories of patent eligible
 subject matter because [1] 

 Examiner Note:
 
 1. This form paragraph should be preceded by form paragraph
 7.05 .
 

 2. In bracket 1, explain why the claimed invention is not patent
 eligible subject matter by identifying what the claim(s) is/are directed to and explain
 why it does not fall within at least one of the four categories of patent eligible
 subject matter recited in 35 U.S.C. 101 (process, machine,
 manufacture, or composition of matter), e.g., the claim(s) is/are directed to a signal
 per se, mere information in the form of data, a contract between
 two parties, or a human being. Note, it is not necessary for a claim to fall into only a
 single category, so long as it is clear that it falls into at least one category (see
 MPEP §
 2106.03 ).
 

 3. For a claim that is directed to a judicial exception and is
 nonstatutory, use form paragraph 7.05.016 .
 
 
 

 ¶ 7.05.016 Rejection, 35 U.S.C. 101, Nonstatutory (Directed to a Judicial
 Exception without an Inventive Concept/Significantly More)
 

 the claimed invention is directed to [1] without
 significantly more. The claim(s) recite(s) [2] . This judicial exception is not
 integrated into a practical application because [3] . The claim(s) does/do not
 include additional elements that are sufficient to amount to significantly more than the
 judicial exception because [4] .
 

 Examiner Note:
 
 1. This form paragraph should be preceded by form paragraph
 7.05 . For
 claims that recite a tentative abstract idea (i.e., a limitation identified as an
 abstract idea even though it does not fall within the groupings of abstract ideas
 discussed in MPEP § 2106.04(a)(2) ), this form
 paragraph should be accompanied by form paragraph 7.05.017 .
 

 2. This form paragraph is for use with all product (machine,
 manufacture, and composition of matter) and process claims, and for all claims directed
 to a law of nature, natural phenomenon (including a product of nature), or abstract
 idea.
 

 3. In bracket 1, identify whether the claim(s) are directed to a
 law of nature, a natural phenomenon (including a product of nature), or an abstract
 idea.
 

 4. In bracket 2, identify the exception by referring to how it is
 recited in the claim and explain why it is considered an exception (e.g., for an
 abstract idea, identify the abstract idea grouping in MPEP §
 2106.04(a)(2) into which the recited exception falls). For
 example, "the Arrhenius equation, which is a law of nature and a mathematical concept
 which describes the relationship between temperature and reaction rate" or "the series
 of steps instructing how to hedge risk, which is a fundamental economic practice and
 thus grouped as a certain method of organizing human interactions." For a product of
 nature exception, refer to how it is recited in the claim and explain why its
 characteristics are not markedly different from the product’s naturally occurring
 counterpart in its natural state. For example, "the naturally occurring DNA segment,
 which is not markedly different from its naturally occurring counterpart because it
 conveys the same genetic information." Provide additional explanation regarding the
 exception and how it has been identified when appropriate.
 

 5. In bracket 3, explain why the combination of additional
 elements fails to integrate the judicial exception into a practical application. For
 example, if the claim is directed to an abstract idea with additional generic computer
 elements, explain that the generically recited computer elements do not add a meaningful
 limitation to the abstract idea because they amount to simply implementing the abstract
 idea on a computer; or, if the claim is directed to a method of using a naturally
 occurring correlation, explain that data gathering steps required to use the correlation
 do not add a meaningful limitation to the method as they are insignificant
 extra-solution activity. Similarly, if the claim recites a "naturally occurring DNA
 segment" with an additional element of a test tube, explain that merely placing the
 product of nature into a generic container such as a test tube does not add a meaningful
 limitation as it is merely a nominal or token extra-solution component of the claim, and
 is nothing more than an attempt to generally link the product of nature to a particular
 technological environment.
 

 6. In bracket 4, identify the additional elements and explain why,
 when considered separately and in combination, they do not add significantly more (also
 known as an "inventive concept") to the exception. For example, if the additional
 limitations only store and retrieve information in memory, explain that these are
 well-understood, routine, conventional computer functions as recognized by the court
 decisions listed in MPEP § 2106.05(d) .
 
 
 

 ¶ 7.05.017 Rejection, 35 U.S.C. 101, TC Director Approval for
 "Tentative Abstract Idea"
 

 The identified claim limitation(s) that recite(s) an abstract idea
 do/does not fall within the groupings of abstract ideas discussed in MPEP §
 2106.04(a)(2) , i.e., mathematical concepts, mental processes, or
 certain methods of organizing human activity. Nonetheless, the claim limitation(s) is/are
 being treated as reciting an abstract idea because [1] .
 

 This rejection has been approved by the Technology Center Director
 signing below.
 

 [2] 

 Examiner Note:
 
 1. This form paragraph should be preceded by form paragraph
 7.05.016 .
 

 2. Approval from the TC Director is required to treat a tentative
 abstract idea (i.e., a claim limitation(s) that does not fall within the groupings of
 abstract ideas discussed in MPEP § 2106.04(a)(2) ) as an abstract
 idea. This form paragraph should be used to demonstrate that this approval has been
 obtained.
 

 3. In bracket 1, provide the justification for why the claim
 limitation(s) is/are being treated as an abstract idea. For example, provide an
 explanation of why the claim limitation is among the "basic tools of scientific and
 technological work."
 

 4. In bracket 2, insert the TC Director's signature. Approval of
 the TC Director is required to treat a claim limitation that does not fall within the
 groupings of abstract ideas discussed in MPEP §
 2106.04(a)(2) as reciting an abstract idea. See
 MPEP §
 2106.04(a)(3) .
 
 
 

 

 

 
 2106.07(b) Evaluating Applicant’s Response [R-10.2019]

 After examiners identify and explain in the record
 the reasons why a claim is directed to an abstract idea, natural phenomenon, or law
 of nature without significantly more, then the burden shifts to the applicant to
 either amend the claim or make a showing of why the claim is eligible for patent
 protection.
 

 In response to a rejection based on failure to claim
 patent-eligible subject matter, applicant may: (i) amend the claim, e.g., to add
 additional elements or modify existing elements so that the claim as a whole amounts
 to significantly more than the judicial exception, (or integrates the judicial
 exception into a practical application), (ii) present persuasive arguments based on a
 good faith belief as to why the rejection is in error and/or (iii) submit evidence
 traversing a subject matter eligibility rejection according to the procedures set
 forth in MPEP §
 716.01 and 37 CFR 1.132 . When evaluating a
 response, examiners must carefully consider all of applicant's arguments and evidence
 rebutting the subject matter eligibility rejection. If applicant has amended the
 claim, examiners should determine the amended claim’s broadest reasonable
 interpretation and again perform the subject matter eligibility analysis. 
 

 If applicant's claim amendment(s), evidence, and/or
 argument(s) persuasively establish that the claim is not directed to a judicial
 exception or is directed to significantly more than a judicial exception, the
 rejection should be withdrawn. Applicant may argue that a claim is eligible because
 the claim as a whole integrates the judicial exception into a practical application
 or amounts to significantly more than the judicial exception when the additional
 elements are considered both individually and in combination. When an additional
 element is considered individually by the examiner, the additional element may be
 enough to integrate the judicial exception into a practical application or to qualify
 as "significantly more" if it meaningfully limits the judicial exception,
 e.g., it improves another technology or technical field,
 improves the functioning of a computer itself. 
 

 In addition, even if an element does not integrate a
 judicial exception into a practical application or amount to significantly more on
 its own ( e.g., because it is merely a generic computer component
 performing generic computer functions), it can still integrate or amount to
 significantly more when considered in combination with the other elements of the
 claim. For example, generic computer components that individually perform merely
 generic computer functions ( e.g., a CPU that performs mathematical
 calculations or a clock that produces time data) in some instances are able in
 combination to perform functions that are not generic computer functions and
 therefore integrate or amount to significantly more than an abstract idea (and are
 thus eligible). 
 

 If applicant properly challenges the examiner's
 findings but the examiner deems it appropriate to maintain the rejection, a rebuttal
 must be provided in the next Office action. Several examples of appropriate examiner
 responses are provided below. 
 

 
 (1) If applicant challenges the identification of a
 tentative abstract idea that was based on a court case and the challenge is not
 persuasive, an appropriate response would be an explanation as to why the
 abstract idea identified in the claim is similar to the concept in the cited
 case.
 

 (2) If applicant responds to an examiner's assertion
 that something is well-known, routine, conventional activity with a specific
 argument or evidence that the additional elements in a claim are not
 well-understood, routine, conventional activities previously engaged in by
 those in the relevant art, the examiner should reevaluate whether the
 additional elements are in actuality well-known, routine, conventional
 activities to those who work in the relevant field. It is especially necessary
 for the examiner to fully reevaluate their position when such additional
 elements are not discussed in the specification as being known generic
 functions/components/activities or are not treated by the courts as
 well-understood, routine, conventional activities. If the rejection is to be
 maintained, the examiner should consider whether evidence should be provided to
 further support the rejection and clarify the record for appeal. See
 MPEP § 2106.05(d) for examples of elements that the
 courts have found to be well understood, routine and conventional activity. If
 the examiner has taken official notice per item (D) of subsection III above
 that an element(s) is well-understood, routine, conventional activity, and the
 applicant challenges the examiner's position, specifically stating that such
 element(s) is not well-understood, routine, conventional activity, the examiner
 must then provide one of the items discussed in paragraphs (A) through (C) of
 subsection III above, or an affidavit or declaration under 37 CFR
 1.104(d)(2) setting forth specific factual statements and
 explanation to support the examiner’s position. See also MPEP §
 2106.07(b) , item (2).
 

 (3) If applicant amends a claim to add a generic
 computer or generic computer components and asserts that the claim is
 integrated into a practical application or recites significantly more because
 the generic computer is 'specially programmed' (as in
 Alappat , now considered superseded) or is a 'particular
 machine' (as in Bilski ), the examiner should look at whether
 the added elements integrate the judicial exception into a practical
 application or provide significantly more than the judicial exception. Merely
 adding a generic computer, generic computer components, or a programmed
 computer to perform generic computer functions does not automatically overcome
 an eligibility rejection. Alice Corp. Pty. Ltd. v. CLS Bank
 Int'l, 573 U.S. 208, 224, 110 USPQ2d 1976, 1984 (2014). See also
 OIP Techs. v. Amazon.com, 788 F.3d 1359, 1364, 115 USPQ2d
 1090, 1093-94 (Fed. Cir. 2015) (“Just as Diehr could not
 save the claims in Alice , which were directed to
 ‘implement[ing] the abstract idea of intermediated settlement on a generic
 computer’, it cannot save OIP 's claims directed to
 implementing the abstract idea of price optimization on a generic computer.”)
 (citations omitted). 
 

 (4) If applicant argues that the claim is specific
 and does not preempt all applications of the exception, the examiner should
 reconsider Step 2A of the eligibility analysis, e.g., to
 determine whether the claim is directed to an improvement to the functioning of
 a computer or to any other technology or technical field. If an examiner still
 determines that the claim is directed to a judicial exception, the examiner
 should then reconsider in Step 2B whether the additional elements in
 combination (as well as individually) amount to an inventive concept,
 e.g., because they are more than the non-conventional and
 non-generic arrangement of known, conventional elements. Such reconsideration
 is appropriate because, although preemption is not a standalone test for
 eligibility, it remains the underlying concern that drives the two-part
 framework from Alice Corp. and Mayo 
 (Steps 2A and 2B). Synopsys, Inc. v. Mentor Graphics Corp., 
 839 F.3d 1138, 1150, 120 USPQ2d 1473, 1483 (Fed. Cir. 2016); Rapid
 Litig. Mgmt. v. CellzDirect, Inc., 827 F.3d 1042, 1052, 119 USPQ2d
 1370, 1376 (Fed. Cir. 2016); Ariosa Diagnostics, Inc. v. Sequenom,
 Inc., 788 F.3d 1371, 1379, 115 USPQ2d 1152, 1158 (Fed. Cir. 2015).
 
 

 
 

 
 2106.07(c) Clarifying the Record [R-08.2017]

 When the claims are deemed patent eligible, the
 examiner may make clarifying remarks on the record. For example, if a claim is found
 eligible because it improves upon existing technology, the examiner could reference
 the portion of the specification that describes the claimed improvement and note the
 claim elements that produce that improvement. The clarifying remarks may be made at
 any point during prosecution as well as with a notice of allowance. 
 

 Clarifying remarks may be useful in explaining the
 rationale for a rejection as well. For instance, explaining the broadest reasonable
 interpretation (BRI) of a claim will assist applicant in understanding and responding
 to a rejection. As an example, a rejection for failure to recite patent eligible
 subject matter in a claim to a computer readable medium could include an explanation
 that the broadest reasonable interpretation of the claim covers a carrier wave, which
 does not fall within one of the four categories of invention, and a suggestion to
 overcome the rejection by submitting a narrowing amendment to cover the statutory
 embodiments. 
 

 

 

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 2101-2102-[Reserved] 

 2103-Patent Examination Process 

 2104-Requirements of 35 U.S.C. 101 
 2104.01-Barred by Atomic Energy Act 

 
 

 2105-Patent Eligible Subject Matter — Living Subject Matter 

 2106-Patent Subject Matter Eligibility 
 2106.01-[Reserved] 

 2106.02-[Reserved] 

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

 2106.04-Eligibility Step 2A: Whether a Claim is Directed to a Judicial Exception 
 2106.04(a)-Abstract Ideas 
 2106.04(a)(1)-Examples of Claims That Do Not Recite Abstract Ideas 

 2106.04(a)(2)-Abstract Idea Groupings 

 2106.04(a)(3)-Tentative Abstract Ideas 

 
 

 2106.04(b)-Laws of Nature, Natural Phenomena & Products of Nature 

 2106.04(c)-The Markedly Different Characteristics Analysis 

 2106.04(d)-Integration of a Judicial Exception Into A Practical Application 
 2106.04(d)(1)-Evaluating Improvements in the Functioning of a Computer, or an Improvement to Any Other Technology or Technical Field in
 Step 2A Prong Two 

 2106.04(d)(2)-Particular Treatment and Prophylaxis in Step 2A Prong Two 

 
 

 
 

 2106.05-Eligibility Step 2B: Whether a Claim Amounts to Significantly More 
 2106.05(a)-Improvements to the Functioning of a Computer or To Any Other Technology or Technical Field 

 2106.05(b)-Particular Machine 

 2106.05(c)-Particular Transformation 

 2106.05(d)-Well-Understood, Routine, Conventional Activity 

 2106.05(e)-Other Meaningful Limitations 

 2106.05(f)-Mere Instructions To Apply An Exception 

 2106.05(g)-Insignificant Extra-Solution Activity 

 2106.05(h)-Field of Use and Technological Environment 

 
 

 2106.06-Streamlined Analysis 
 2106.06(a)-Eligibility is Self Evident 

 2106.06(b)-Clear Improvement to a Technology or to Computer Functionality 

 
 

 2106.07-Formulating and Supporting Rejections For Lack Of Subject Matter Eligibility 
 2106.07(a)-Formulating a Rejection For Lack of Subject Matter Eligibility 
 2106.07(a)(1)-Form Paragraphs for use in Lack of Subject Matter Eligibility Rejections 

 
 

 2106.07(b)-Evaluating Applicant’s Response 

 2106.07(c)-Clarifying the Record 

 
 

 
 

 2107-Guidelines for Examination of Applications for Compliance with the Utility Requirement 
 2107.01-General Principles Governing Utility Rejections 

 2107.02-Procedural Considerations Related to Rejections for Lack of Utility 

 2107.03-Special Considerations for Asserted Therapeutic or Pharmacological Utilities 

 
 

 2108-[Reserved] 

 2109-Inventorship 

 2109.01-Joint Inventorship 

 2110-[Reserved] 

 2111-Claim Interpretation; Broadest Reasonable Interpretation 
 2111.01-Plain Meaning 

 2111.02-Effect of Preamble 

 2111.03-Transitional Phrases 

 2111.04-“Adapted to,” “Adapted for,” “Wherein,” “Whereby,” and Contingent Clauses 

 2111.05-Functional and Nonfunctional Descriptive Material 

 
 

 2112-Requirements of Rejection Based on Inherency; Burden of Proof 
 2112.01-Composition, Product, and Apparatus Claims 

 2112.02-Process Claims 

 
 

 2113-Product-by-Process Claims 

 2114-Apparatus and Article Claims — Functional Language 

 2115-Material or Article Worked Upon by Apparatus 

 2116-Novel, Nonobvious Starting Material or End Product 
 2116.01-Novel, Nonobvious Starting Material or End Product 

 
 

 2117-Markush Claims 

 2118-2119-[Reserved] 

 2120-Rejection on Prior Art 
 2120.01-Rejections Under 35 U.S.C. 102(a)(1) and (a)(2) and Pre-AIA 35 U.S.C. 102(a), (b), or (e): Printed Publication or Patent 

 2120.02-Rejections Under 35 U.S.C. 102(a)(1) or Pre-AIA 35 U.S.C. 102(a) or (b): Knowledge by Others, or Public Use, or On Sale 

 
 

 2121-Prior Art; General Level of Operability Required to Make a Prima Facie Case 
 2121.01-Use of Prior Art in Rejections Where Operability is in Question 

 2121.02-Compounds and Compositions — What Constitutes Enabling Prior Art 

 2121.03-Plant Genetics — What Constitutes Enabling Prior Art 

 2121.04-Apparatus and Articles — What Constitutes Enabling Prior Art 

 
 

 2122-Discussion of Utility in the Prior Art 

 2123-Rejection Over Prior Art’s Broad Disclosure Instead of Preferred Embodiments 

 2124-Exception to the Rule That the Reference Must be Prior Art 
 2124.01-Tax Strategies Deemed Within the Prior Art 

 
 

 2125-Drawings as Prior Art 

 2126-Availability of a Document as a “Patent” for Purposes of Rejection Under 35 U.S.C. 102(a) or Pre-AIA 35 U.S.C. 102(a), (b),
 and (d) 
 2126.01-Date of Availability of a Patent as a Reference 

 2126.02-Scope of Reference’s Disclosure Which Can Be Used to Reject Claims When the Reference Is a “Patent” but Not a “Publication” 

 
 

 2127-Domestic and Foreign Patent Applications as Prior Art 

 2128-“Printed Publications” as Prior Art 
 2128.01-Level of Public Accessibility Required 

 2128.02-Date Publication Is Available as a Reference 

 
 

 2129-Admissions as Prior Art 

 2130-[Reserved] 

 2131-Anticipation — Application of 35 U.S.C. 102 
 2131.01-Multiple Reference 35 U.S.C. 102 Rejections 

 2131.02-Genus-Species Situations 

 2131.03-Anticipation of Ranges 

 2131.04-Secondary Considerations 

 2131.05-Nonanalogous or Disparaging Prior Art 

 
 

 2132-Pre-AIA 35 U.S.C. 102(a) 
 2132.01-Overcoming a Pre-AIA 35 U.S.C. 102(a) Rejection based on a Printed Publication or Patent 

 
 

 2133-Pre-AIA 35 U.S.C. 102(b) 
 2133.01-Rejections of Continuation-In-Part (CIP) Applications 

 2133.02-Rejections Based on Publications and Patents 
 2133.02(a)-Overcoming a Pre-AIA 35 U.S.C. 102(b) Rejection Based on a Printed Publication or Patent 

 
 

 2133.03-Rejections Based on “Public Use” or “On Sale” 
 2133.03(a)-“Public Use” 

 2133.03(b)-“On Sale” 

 2133.03(c)-The “Invention” 

 2133.03(d)-“In This Country” 

 2133.03(e)-Permitted Activity; Experimental Use 
 2133.03(e)(1)-Commercial Exploitation 

 2133.03(e)(2)-Intent 

 2133.03(e)(3)-“Completeness” of the Invention 

 2133.03(e)(4)-Factors Indicative of an Experimental Purpose 

 2133.03(e)(5)-Experimentation and Degree of Supervision and Control 

 2133.03(e)(6)-Permitted Experimental Activity and Testing 

 2133.03(e)(7)-Activity of an Independent Third Party Inventor 

 
 

 
 

 
 

 2134-Pre-AIA 35 U.S.C. 102(c) 

 2135-Pre-AIA 35 U.S.C. 102(d) 
 2135.01-The Four Requirements of Pre-AIA 35 U.S.C. 102(d) 

 
 

 2136-Pre-AIA 35 U.S.C. 102(e) 
 2136.01-Status of Unpublished or Published as Redacted U.S. Application as a Reference Under Pre-AIA 35 U.S.C. 102(e) 

 2136.02-Content of the Prior Art Available Against the Claims 

 2136.03-Critical Reference Date 

 2136.04-Different Inventive Entity; Meaning of “By Another” 

 2136.05-Overcoming a Rejection Under Pre-AIA 35 U.S.C. 102(e) 
 2136.05(a)-Antedating a Pre-AIA 35 U.S.C. 102(e) Reference 

 2136.05(b)-Showing The Reference Is Describing An Inventor's Or At Least One Joint Inventor's Own Work 

 
 

 
 

 2137-Pre-AIA 35 U.S.C. 102(f) 
 2137.01-[Reserved] 

 2137.02-[Reserved] 

 
 

 2138-Pre-AIA 35 U.S.C. 102(g) 
 2138.01-Interference Practice 

 2138.02-“The Invention Was Made in This Country” 

 2138.03-“By Another Who Has Not Abandoned, Suppressed, or Concealed It” 

 2138.04-“Conception” 

 2138.05-“Reduction to Practice” 

 2138.06-“Reasonable Diligence” 

 
 

 2139-Rejections Under Pre-AIA 35 U.S.C. 102 
 2139.01-Effective Filing Date of a Claimed Invention Under Pre-AIA 35 U.S.C. 102 

 2139.02-Determining Whether To Apply Pre-AIA 35 U.S.C. 102(a), (b), or (e) 

 2139.03-Form Paragraphs for Use in Rejections Under Pre-AIA 35 U.S.C. 102 

 
 

 2140-[Reserved] 

 2141-Examination Guidelines for Determining Obviousness Under 35 U.S.C. 103 
 2141.01-Scope and Content of the Prior Art 
 2141.01(a)-Analogous and Nonanalogous Art 

 
 

 2141.02-Differences Between Prior Art and Claimed Invention 

 2141.03-Level of Ordinary Skill in the Art 

 
 

 2142-Legal Concept of Prima Facie Obviousness 

 2143-Examples of Basic Requirements of a Prima Facie Case of Obviousness 
 2143.01-Suggestion or Motivation To Modify the References 

 2143.02-Reasonable Expectation of Success Is Required 

 2143.03-All Claim Limitations Must Be Considered 

 
 

 2144-Supporting a Rejection Under 35 U.S.C. 103 
 2144.01-Implicit Disclosure 

 2144.02-Reliance on Scientific Theory 

 2144.03-Reliance on Common Knowledge in the Art or “Well Known” Prior Art 

 2144.04-Legal Precedent as Source of Supporting Rationale 

 2144.05-Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions 

 2144.06-Art Recognized Equivalence for the Same Purpose 

 2144.07-Art Recognized Suitability for an Intended Purpose 

 2144.08-Obviousness of Species When Prior Art Teaches Genus 

 2144.09-Close Structural Similarity Between Chemical Compounds (Homologs, Analogues, Isomers) 

 
 

 2145-Consideration of Applicant’s Rebuttal Arguments and Evidence 

 2146-Pre-AIA 35 U.S.C. 103(c) 
 2146.01-Prior Art Disqualification Under Pre-AIA 35 U.S.C. 103(c) 

 2146.02-Establishing Common Ownership or Joint Research Agreement Under Pre-AIA 35 U.S.C. 103(c) 

 2146.03-Examination Procedure With Respect to Pre-AIA 35 U.S.C. 103(c) 
 2146.03(a)-Provisional Rejection (Obviousness) Under 35 U.S.C. 103(a) Using Provisional Prior Art Under Pre-AIA 35 U.S.C. 102(e) 

 
 

 
 

 2147-Biotechnology Process Applications; Pre-AIA 35 U.S.C. 103(b) 

 2148-Form Paragraphs for Use in Rejections Under Pre-AIA 35 U.S.C. 103 

 2149-[Reserved] 

 2150-Examination Guidelines for 35 U.S.C. 102 and 103 as Amended by the First Inventor To File Provisions of the Leahy-Smith America
 Invents Act 

 2151-Overview of the Changes to 35 U.S.C. 102 and 103 in the AIA 

 2152-Detailed Discussion of AIA 35 U.S.C. 102(a) and (b) 
 2152.01-Effective Filing Date of the Claimed Invention 

 2152.02-Prior Art Under AIA 35 U.S.C. 102(a)(1) (Patented, Described in a Printed Publication, or in Public Use, on Sale, or Otherwise
 Available to the Public) 
 2152.02(a)-Patented 

 2152.02(b)-Described in a Printed Publication 

 2152.02(c)-In Public Use 

 2152.02(d)-On Sale 

 2152.02(e)-Otherwise Available to the Public 

 2152.02(f)-No Requirement of “By Others” 

 
 

 2152.03-Admissions 

 2152.04-The Meaning of “Disclosure” 

 2152.05-Determining Whether To Apply 35 U.S.C. 102(a)(1) or 102(a)(2) 

 2152.06-Overcoming a 35 U.S.C. 102(a)(1) or 102(a)(2) Rejection 

 2152.07-Form Paragraphs for Use in Rejections Under AIA 35 U.S.C. 102 

 
 

 2153-Prior Art Exceptions Under 35 U.S.C. 102(b)(1) to AIA 35 U.S.C. 102(a)(1) 
 2153.01-Prior Art Exception Under AIA 35 U.S.C. 102(b)(1)(A) To AIA 35 U.S.C. 102(a)(1) (Grace Period Inventor-Originated Disclosure
 Exception) 
 2153.01(a)-Grace Period Inventor-Originated Disclosure Exception 

 2153.01(b)-[Reserved] 

 
 

 2153.02-Prior Art Exception Under AIA 35 U.S.C. 102(b)(1)(B) to AIA 35 U.S.C. 102(a)(1) (Inventor-Originated Prior Public Disclosure
 Exception) 

 
 

 2154-Provisions Pertaining to Subject Matter in a U.S. Patent or Application Effectively Filed Before the Effective Filing Date
 of the Claimed Invention 
 2154.01-Prior Art Under AIA 35 U.S.C. 102(a)(2) “U.S. Patent Documents” 
 2154.01(a)-WIPO Published Applications 

 2154.01(b)-Determining When Subject Matter Was Effectively Filed Under AIA 35 U.S.C. 102(d) 

 2154.01(c)-Requirement Of “Names Another Inventor” 

 2154.01(d)-Provisional Rejections Under 35 U.S.C. 102(a)(2); Reference Is a Copending U.S. Patent Application 

 
 

 2154.02-Prior Art Exceptions Under 35 U.S.C. 102(b)(2) to AIA 35 U.S.C. 102(a)(2) 
 2154.02(a)-Prior Art Exception Under AIA 35 U.S.C. 102(b)(2)(A) to AIA 35 U.S.C. 102(a)(2) (Inventor-Originated Disclosure Exception) 

 2154.02(b)-Prior Art Exception Under AIA 35 U.S.C. 102(b)(2)(B) to AIA 35 U.S.C. 102(a)(2) (Inventor-Originated Prior Public Disclosure
 Exception) 

 2154.02(c)-Prior Art Exception Under AIA 35 U.S.C. 102(b)(2)(C) to AIA 35 U.S.C. 102(a)(2) (Common Ownership or Obligation of Assignment) 

 
 

 
 

 2155-Use of Affidavits or Declarations Under 37 CFR 1.130 To Overcome Prior Art Rejections 
 2155.01-Showing That the Disclosure Was Made by the Inventor or a Joint Inventor 

 2155.02-Showing That the Subject Matter Disclosed Had Been Previously Publicly Disclosed by the Inventor or a Joint Inventor 

 2155.03-Showing That the Disclosure was Made, or That Subject Matter had Been Previously Publicly Disclosed, by Another Who Obtained
 the Subject Matter Disclosed Directly or Indirectly From the Inventor or a Joint Inventor 

 2155.04-Enablement 

 2155.05-Who May File an Affidavit or Declaration Under 37 CFR 1.130 

 2155.06-Situations in Which an Affidavit or Declaration Is Not Available 

 
 

 2156-Joint Research Agreements 

 2157-Improper Naming of Inventors 

 2158-AIA 35 U.S.C. 103 
 2158.01-Form Paragraphs for Use in Rejections Under AIA 35 U.S.C. 103 

 
 

 2159-Applicability Date Provisions and Determining Whether an Application Is Subject to the First Inventor To File Provisions of
 the AIA 
 2159.01-Applications Filed Before March 16, 2013 

 2159.02-Applications Filed on or After March 16, 2013 

 2159.03-Applications Subject to the AIA but Also Containing a Claimed Invention Having an Effective Filing Date Before March 16, 2013 

 2159.04-Applicant Statement in Transition Applications Containing a Claimed Invention Having an Effective Filing Date on or After
 March 16, 2013 

 
 

 2160-[Reserved] 

 2161-Three Separate Requirements for Specification Under 35 U.S.C. 112(a) or Pre-AIA 35 U.S.C. 112, First Paragraph 
 2161.01-Computer Programming, Computer Implemented Inventions, and 35 U.S.C. 112(a) or Pre-AIA 35 U.S.C. 112, First Paragraph 

 
 

 2162-Policy Underlying 35 U.S.C. 112(a) or Pre-AIA 35 U.S.C. 112, First Paragraph 

 2163-Guidelines for the Examination of Patent Applications Under the 35 U.S.C. 112(a) or Pre-AIA 35 U.S.C. 112, first paragraph,
 “Written Description” Requirement 
 2163.01-Support for the Claimed Subject Matter in Disclosure 

 2163.02-Standard for Determining Compliance With the Written Description Requirement 

 2163.03-Typical Circumstances Where Adequate Written Description Issue Arises 

 2163.04-Burden on the Examiner with Regard to the Written Description Requirement 

 2163.05-Changes to the Scope of Claims 

 2163.06-Relationship of Written Description Requirement to New Matter 

 2163.07-Amendments to Application Which Are Supported in the Original Description 
 2163.07(a)-Inherent Function, Theory, or Advantage 

 2163.07(b)-Incorporation by Reference 

 
 

 
 

 2164-The Enablement Requirement 
 2164.01-Test of Enablement 
 2164.01(a)-Undue Experimentation Factors 

 2164.01(b)-How to Make the Claimed Invention 

 2164.01(c)-How to Use the Claimed Invention 

 
 

 2164.02-Working and Prophetic Examples 

 2164.03-Relationship of Predictability of the Art and the Enablement Requirement 

 2164.04-Burden on the Examiner Under the Enablement Requirement 

 2164.05-Determination of Enablement Based on Evidence as a Whole 
 2164.05(a)-Specification Must Be Enabling as of the Filing Date 

 2164.05(b)-Specification Must Be Enabling to Persons Skilled in the Art 

 
 

 2164.06-Quantity of Experimentation 
 2164.06(a)-Examples of Enablement Issues-Missing Information 

 2164.06(b)-Examples of Enablement Issues — Biological and Chemical Cases 

 2164.06(c)-Examples of Enablement Issues – Computer Programming Cases 

 
 

 2164.07-Relationship of Enablement Requirement to Utility Requirement of 35 U.S.C. 101 

 2164.08-Enablement Commensurate in Scope With the Claims 
 2164.08(a)-Single Means Claim 

 2164.08(b)-Inoperative Subject Matter 

 2164.08(c)-Critical Feature Not Claimed 

 
 

 
 

 2165-The Best Mode Requirement 
 2165.01-Considerations Relevant to Best Mode 

 2165.02-Best Mode Requirement Compared to Enablement Requirement 

 2165.03-Requirements for Rejection for Lack of Best Mode 

 2165.04-Examples of Evidence of Concealment 

 
 

 2166-Rejections Under 35 U.S.C. 112(a) or Pre-AIA 35 U.S.C. 112, First Paragraph 

 2167-2170-[Reserved] 

 2171-Two Separate Requirements for Claims Under 35 U.S.C. 112(b) or Pre-AIA 35 U.S.C. 112, Second Paragraph 

 2172-Subject Matter Which the Inventor or a Joint Inventor Regards as The Invention 
 2172.01-Unclaimed Essential Subject Matter 

 
 

 2173-Claims Must Particularly Point Out and Distinctly Claim the Invention 
 2173.01-Interpreting the Claims 

 2173.02-Determining Whether Claim Language is Definite 

 2173.03-Correspondence Between Specification and Claims 

 2173.04-Breadth Is Not Indefiniteness 

 2173.05-Specific Topics Related to Issues Under 35 U.S.C. 112(b) or Pre-AIA 35 U.S.C. 112, Second Paragraph 
 2173.05(a)-New Terminology 

 2173.05(b)-Relative Terminology 

 2173.05(c)-Numerical Ranges and Amounts Limitations 

 2173.05(d)-Exemplary Claim Language (“for example,” “such as”) 

 2173.05(e)-Lack of Antecedent Basis 

 2173.05(f)-Reference to Limitations in Another Claim 

 2173.05(g)-Functional Limitations 

 2173.05(h)-Alternative Limitations 

 2173.05(i)-Negative Limitations 

 2173.05(j)-Old Combination 

 2173.05(k)-Aggregation 

 2173.05(l)-[Reserved] 

 2173.05(m)-Prolix 

 2173.05(n)-Multiplicity 

 2173.05(o)-Double Inclusion 

 2173.05(p)-Claim Directed to Product-By- Process or Product and Process 

 2173.05(q)-“Use” Claims 

 2173.05(r)-Omnibus Claim 

 2173.05(s)-Reference to Figures or Tables 

 2173.05(t)-Chemical Formula 

 2173.05(u)-Trademarks or Trade Names in a Claim 

 2173.05(v)-Mere Function of Machine 

 
 

 2173.06-Practice Compact Prosecution 

 
 

 2174-Relationship Between the Requirements of 35 U.S.C. 112(a) and (b) or Pre-AIA 35 U.S.C. 112, First and Second Paragraphs 

 2175-Form Paragraphs for Use in Rejections Under 35 U.S.C. 112(b) or Pre-AIA 35 U.S.C. 112, Second Paragraph 

 2176-2180-[Reserved] 

 2181-Identifying and Interpreting a 35 U.S.C. 112(f) or Pre-AIA 35 U.S.C. 112, Sixth Paragraph Limitation 

 2182-Search and Identification of the Prior Art 

 2183-Making a Prima Facie Case of Equivalence 

 2184-Determining Whether an Applicant Has Met the Burden of Proving Nonequivalence After a Prima Facie Case Is Made 

 2185-Related Issues Under 35 U.S.C. 112(a) or (b) and Pre-AIA 35 U.S.C. 112, First or Second Paragraphs 

 2186-Relationship to the Doctrine of Equivalents 

 2187-Form Paragraphs for Use Relating to 35 U.S.C. 112(f) or Pre-AIA 35 U.S.C. 112, Sixth Paragraph 

 2188-2189-[Reserved] 

 2190-Prosecution Laches and Res Judicata 

 

 

 
 

 
 
 

 
 

 

 
 
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