New 101 Guidance Addresses Recent CAFC Decisions

Today, the USPTO issued a memorandum entitled “Recent Subject Matter Eligibility Decisions.” (here).  The memo  provides a discussion of two recent CAFC decisions identifying eligible subject matter, namely McRO, Inc. dba Planet Blue v. Bandai Namco Games America Inc., 120 USPQ2d 1091 (Fed. Cir. 2016) and BASCOM Global Internet Services v. AT&T Mobility LLC, 827 F .3d 1341 (Fed. Cir. 2016).

With respect to McRO, the memo emphasizes the value of the specification in interpreting claims under 101, specifically where a problem is identified in the art, and the solution presented in the claims. As to Bascom, the memo emphasizes that conventional elements may nonetheless be arranged in unconventional manners (again emphasizing the value of the specification in explaining such).

The Office promises more updates in the future, including addressing yesterday’s decision in  Amdocs (Israel) Ltd. v. Openet Telecom, Inc., No. 2015-1180 (Fed. Cir. Nov. 1, 2016), which found distributed computing to be an unconventional technological solution.