On September 24, 2018, USPTO Director Andrei Iancu told the Intellectual Property Owners Association (IPO) that examiners, applicants, patent owners, and judges are struggling to understand what patentable subject matter is. Citing recent Federal Circuit opinions, Director Iancu noted how blending conditions for patentability with subject matter eligibility has resulted in incoherent doctrine. He also applauded IPO’s joint effort with the American Intellectual Property Law Association (AIPLA) to propose new statutory language for § 101, but opined that the USPTO cannot wait for the slow pace of legislation. Director Iancu indicated that the USPTO is contemplating revised guidance to help categorize the exceptions and provide additional instructions to examiners on how to apply them.
