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Deputy Commissioner for Patent Examination Policy United States Patent & Trademark Office Re: Comments on Preliminary Examination Instructions in view of the Supreme Court Decision in Alice Corp. v. CLS Bank

The USPTO’s Preliminary Examination Instructions (“Guidance”) in view of Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014) do not correctly interpret the Supreme Court’s decision, and do not provide specific guidance to the 7,000 examiners who will have to implement them on a daily basis. The Court’s decision was not written as a manual for how examiners are to evaluate patent applications, and so simply quoting and paraphrasing the decision (along with scrupulous footnoting) is not sufficient to provide a cohesive, workable framework for the examination of patent applications, particularly for computer implemented inventions. The core problem remains that examiners will be left to their own subjective evaluation and opinion of the patent eligibility of the claims before them. Already, the patent community is observing very different approaches from different examiners. This lack of uniformity leads to increased costs and delays in the examination of patents, as well as increased uncertainty by innovators as to the eligibility of their inventions in technologies that have been traditionally considered patent eligible.