Thursday, January 6, 2022

USPTO - Deferred Subject Matter Eligibility Response Pilot Program.

Here's the USPTO's announcement: 

"The United States Patent and Trademark Office (USPTO) today announced a new Deferred Subject Matter Eligibility Response (DSMER) Pilot Program for nonprovisional patent applications that will launch on February 1, 2022. This pilot program was initiated in response to a letter from Senators Thom Tillis and Tom Cotton and is designed to evaluate how deferred applicant responses to subject matter eligibility (SME) rejections could affect examination efficiency and patent quality as compared to traditional compact prosecution practice. Participation in this program is by invitation only. Applicants may receive invitations to participate if their applications meet certain criteria, including a requirement that the first Office action on the merits makes both SME and non-SME rejections. More information about this pilot program is available in the Federal Register Notice announcing the program and on the DSMER Pilot Program page of the USPTO website."

I appreciate the effort to mitigate the uncertainty of Section 101, but note this program may result in claims held to be novel and non-obvious (after much effort) to be held ineligible based on an examiner's unsupported subjective opinion. 

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