The Instructions supersede previous guidance on subject matter eligibility that conflicts with the instructions, including MPEP 2106(IV), 2106.01 and 2106.02, as of 8/24/09. To determine subject matter eligibility, follow the “Interim Examination Instructions for Evaluating Subject Matter Eligibility Under 35 U.S.C. § 101”. Product claims are evaluated to determine if the claim is wholly directed to a judicial exception. Functional/nonfunctional descriptive material (FDM/NFDM) is evaluated for patentable distinction over the prior art. See MPEP 2112.01(III). All process (method) claims are evaluated with the M-or-T test.
For subject matter eligibility instructions regarding product claims, there is a two step analysis newly developed to help determine if the subject matter contained in the application is patentable per 35 U.S.C. § 101.