USPTO Asks for Comments on New Interim Guidance on Bilski

“The PTO has just issued new guidance for their examiners on
Bilski, Interim Guidance for Determining Subject Matter Eligibility
for Process Claims in View of Bilski v. Kappos [PDF] — on how to
follow what they think Bilski held as to what is and isn’t
patentable subject matter under 35 U.S.C. § 101.

“”A claim to an abstract idea is not a patent-eligible process,”
Bilski holds, they point out, but exactly where is the line? How do
you know an abstract idea when you see it? So the USPTO is asking
for public comment on what they came up with for their
understanding. They want to hear from the public by September 27,
and they provide some specific questions and a list of factors
examiners are to consider when evaluating an application.

“You know pro-patent companies’ lawyers in droves will be
telling them that their clients should be able to patent God’s
method and process for creating the heavens and the earth, so you
may wish to comment yourself and let them know politely where you
think the line should be drawn on the abstract idea exception to
subject matter eligibility as set forth in Bilski, if this is a
topic you care about. Otherwise, I can see it now, their report: We
got 3,201 comments saying X and only 3 saying Y, so X carries the
day.”

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