Here is a sign that the USPTO’s January, 2019, guidance on 35 U.S.C. § 101 and patent-eligibility may have an immediate and significant impact on USPTO rejections under the Mayo/Alice abstract idea test. The guidance became effective January 7, 2019. The Patent and Trial and Appeal Board (PTAB) soon thereafter decided In re Smith (Appeal No. 2018-000064; Application 13/715,476; Feb. 1, 2019), reversing an examiner’s § 101 rejection of claims directed to “trading derivatives in a hybrid exchange system.” Then, on March 19, 2019, the PTAB singled out Smith for designation as “informative.” The PTAB only very rarely designates a decision as “informative,” which it does according to a strictly defined “Standard Operating Procedure.” The “informative” designation means that, while the decision “is not binding authority,” it is deemed to “provide the Board’s general…
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