Examination Guidance on Eligibility

USPTO guidance, July 2024. It states that it does not have the force and effect of law. Read from the primary document; quotations verified against its own text.

Read this with Recentive v. Fox. This is what examiners are told. Recentive is what a court enforces. Read alone, the guidance reads as a more permissive standard than the one a patent meets in litigation.
What it says

The USPTO's July 2024 eligibility guidance directs examiners to ask whether a claim as a whole integrates a recited judicial exception into a practical application, including by reflecting an improvement in the functioning of a computer or another technical field, and states expressly that it does not constitute substantive rulemaking and does not have the force and effect of law.

The guidance directs examiners to ask whether a claim as a whole integrates a recited judicial exception into a practical application, including by reflecting an improvement in the functioning of a computer or another technical field.

It also disclaims its own legal force. The guidance states expressly that it does not constitute substantive rulemaking and does not have the force and effect of law.

Both halves matter together. It is what an applicant meets during examination, and it is not what a patent is measured against once it is litigated.

What examiners actually write

The guidance has no force of law, and it is nonetheless the vocabulary of the rejection. These are the shares of 2025 non-final section 101 rejections containing each phrase, from our own counts of the USPTO record. The guidance's own language appears far more often than the case law it rests on.

What a section 101 rejection says, 2025
61,145 non-final rejections citing section 101, mailed in 2025. A rejection can contain several of these, so the rows overlap. Bars run from zero.
"significantly more"
82.8%
"practical application"
81.2%
MPEP 2106
66.1%
Prong One or Prong Two
58.6%
"mental process"
58.0%
Mathematical concept
32.2%
"well-understood, routine and conventional"
30.9%
Organizing human activity
26.8%
Alice, by name
21.7%
2019 Revised Guidance, by name
18.3%
Every one of these rose between 2024 and 2025 except the two drawn in rose: naming Alice fell 0.4 points and naming the 2019 Revised Guidance fell 1.3. The framework language rose fastest, with Prong One or Prong Two up 5.8 points and "mental process" up 5.2. A rejection is written in the guidance's terms roughly four times as often as it names the case the guidance interprets.
Our own counts from the USPTO record, every non-final Office action mailed 2024 to 2025.

A phrase match over the text of the action. It counts what the rejection says, not whether it was right, and says nothing about any particular application.

The rate it was meant to govern

Guidance is easier to judge against the eligibility rate around it. Section 101 appears in about one non-final action in seven today. It has not been steady, and the lowest year in the series is the year of the previous guidance rather than this one.

Share of non-final Office actions raising section 101, by year
A 10% sample of non-final actions per year, matched on the text of the action. Columns run from zero on a 0 to 100% scale, so each column’s height is the share it shows.
17.1%2018
9.0%2019
2020
2021
2022
2023
2024
15.1%2025
2019 is in rose: the rate halves from 17.1% to 9.0% in the year of the 2019 Revised Patent Subject Matter Eligibility Guidance, then climbs in every year since to 15.1% in 2025, which is most of the way back. The timing fits the 2019 guidance and the timing is all it establishes. Mailing year is not a cause, and what was being filed changed across the same period. The 2024 guidance that this page is about sits in the two cyan columns, where the rate was already rising.
Share of non-final Office actions citing section 101, by mailing year. Our own counts from the USPTO action text. The column chart above draws this column.
Mailing yearRaised section 101
201817.1%
20199.0%
20209.3%
20219.7%
202211.0%
202311.2%
202413.5%
202515.1%

What This Does Not Decide

Presenting examination guidance as the law is the failure this page exists to avoid. This is the record in the corpus closest to the line, because its subject is the eligibility test itself. The guidance's own disclaimer is carried above for that reason, not as a footnote.
  • It does not say whether any claim is eligible, patentable, novel or non-obvious.
  • It does not bind a court, and it says so itself.
  • It does not change what the Federal Circuit has held. See the decisions in this section for that.

Educational, not legal advice. This page reports what an authority says. Applying it to a matter is work for a registered practitioner with the file in front of them.

Sources

  • USPTO, 2024 Guidance Update on Patent Subject Matter Eligibility (July 2024)
  • Back to the cluster

More in this cluster

Harder since Alice? Six claims bundled into one belief, each against the USPTO record. Software overall matches everything else or beats it, depending which classes you count. Business methods are the real exception. Read the Answer Recentive v. Fox Applying established machine learning to a new field is an abstract idea. The court expressly left room for claims that improve the machine learning itself. Read the Case Contour v. GoPro Claims reciting a particular mechanism, two parallel video streams with only the low-quality one transmitted, were eligible at step one without reaching step two. Read the Case Ollnova v. ecobee Timing constraints and a conditional transmission trigger were a specific technological improvement. The $11.5 million verdict fell anyway, on procedure. Read the Case GoTV v. Netflix "Algorithm" and "architecture" are highly general labels when nothing structural sits behind them. A $2.5 million verdict was wiped out. Read the Case 7,679,637 v. Google Claims saying what applications are "arranged to allow" rather than how they achieve it are result-oriented. The court set out three analytical approaches. Read the Case Ex parte Desjardins An agency adjudication, not a court decision. The claim limitation required learning without forgetting. The claims still stand rejected for obviousness. Read the Case Constellation Designs v. LG Two kinds of claim in one family, two answers. Optimization claims were abstract; claims to specific constellations survived. The specification did not rescue the first set. Read the Case Ex parte Ziegler An agency adjudication and a divided one. The majority found the Examiner had skipped the specification evaluation the MPEP requires. The dissent would have affirmed. Read the Case

Related

Software Patents After Alice Alice changed the rules, not the game. About three in four software applications are still granted. A guide to what survives, prosecution strategies, and what developers should document. Read the Guide