On November 2, 2016, the USPTO issued a new Memorandum relating to rejections under § 101. Entitled “Recent Subject Matter Eligibility Decisions,” the Memo generally follows the format of previous guidance, discussing the recently-decided McRO, Inc. 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). The memo also briefly addresses preemption and use of non-precedential decisions in Office Actions. While nothing in the memo is particularly groundbreaking, the fact that the PTO is taking the time explain current precedent to examiners gives applicants a leg up in arguing eligibility.
