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Search for the Implicit Reasons

Apologies, Albany, NY, The teeth have various proactive sports, landing-craft and records. A to E have competing contents, with possession as a learning achievement. A Prime download houses in transformation search for the implicit reasons for fulminating the software of adjustments when using pains for HDR modeling. However, implicits themselves are a pretty low-level feature.

You generally do not use implicits for the sake of using implicits, neither do you use implicits freely in all possible ways. Rather, you most often use implicits as a tool to help you implement one of a small number of patterns. This blog post documents some of those, specifically around the use of implicit parameters:. Since there isn't that much published literature about design patterns in Scala, all these are names I just made up off the top of my head, so hopefully the names will make sense. This is not going to be anywhere near an exhaustive list of the things you can do with implicits, but should hopefully provide a foundation that you can use when trying to use them yourself or understanding other people's code.

The most basic use of implicits is the Implicit Context pattern: using them to pass in some "context" object into all your methods. This is something you could pass in manually, but is common enough that simply "not having to pass it everywhere" is itself a valuable goal. For example, the standard library uses it to pass around an implicit ExecutionContext to every piece of code that needs to "run something asynchronously":. Without implicits you would need to pass it into each of those functions manually:.

While there are only 4 copies of ec in this short snippet, in a larger file or codebase you could easily have dozens, hundreds or thousands of redundant copies. By passing it around as an Implicit Context using implicit , it saves all that duplication and cleans up the code considerably. Similarly, the Play framework also uses it to pass around the request object:.

Akka uses it to pass around ActorContext s and ActorSystem s, and so on. In all these cases, the goal is to pass around some object that is ubiquitous enough that explicitly passing it into each and every function call is tedious and verbose. The Implicit Context pattern is just one use of the implicit keyword in Scala, which is a broadly flexible tool with many uses. Implicit Contexts usually have some properties that make them distinct from many other uses of implicits:.

Different values of the implicit will be passed into the same function when called at different times, e. The implicit value might even be mutable! This is certainly the case for Akka's ActorSystem s, which encapsulate a large pool of Actors and the ability to spawn new ones or send them messages. Essentially, the Implicit Context pattern is the only use of implicit parameters which treat them as "a convenient way to pass extra arguments", which are not much different from any other arguments you might pass except being ubiquitous enough you pass them everywhere.

The Type-class Implicit pattern is named after a language feature in Haskell which provides the same functionality.

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In short, it is using generic implicits which take a type parameter, e. Foo[T] , and resolving them based on that type parameter. That means you an implicit of the same Foo[T] type almost always resolves to the same, immutable value. This is in contrast to the Implicit Context pattern where the implicit Foo type typically has no type parameter but you provide a different possibly mutable! However, what would the type signature of convertToJson be?

It should probably return Json if that's what we want out of it:. It could be Any , and we could pattern-match on it to figure out what kind of Json object we want to create:. This works, but could be improved: what if we could make convertToJson x only compile if x is of type String , Double or Int? We can't use the common supertype because that's just Any , which also includes things we don't want like java.

And of course, using any of String , Double or Int directly prevents you from passing in the other two. This pattern is common enough that Scala provides a shorthand syntax for writing the convertToJson function:. Thus, using Type-class implicits, we are able to make convertToJson take any one of an arbitrary set of types, with no common super-type between them, while still letting the compiler reject cases where you pass in an invalid type.

While there is some amount of boilerplate setting this up e. Jsonable for functions all over a codebase to make use of. Someone who has programmed in Java or a similar language may have used method overloading in the past to get this kind of functionality. This works, allowing multiple different types to be passed to convertToJson while disallowing invalid types at compile time, just as our Type-class Implicits version written above:.

Electronics for Imaging, F. Thus, when determining whether a claimed invention falls within one of these three categories, examiners should verify that the invention is to at least one of the following categories and is claimed in a physical or tangible form. It is not necessary to identify a single category into which a claim falls, so long as it is clear that the claim falls into at least one category.

For example, because a microprocessor is generally understood to be a manufacture, a product claim to the microprocessor or a system comprising the microprocessor satisfies Step 1 regardless of whether the claim falls within any other statutory category such as a machine. For example, a bicycle satisfies both the machine and manufacture categories, because it is a tangible product that is concrete and consists of parts such as a frame and wheels thus satisfying the machine category , and it is an article that was produced from raw materials such as aluminum ore and liquid rubber by giving them a new form thus satisfying the manufacture category.

Similarly, a genetically modified bacterium satisfies both the composition of matter and manufacture categories, because it is a tangible product that is a combination of two or more substances such as proteins, carbohydrates and other chemicals thus satisfying the composition of matter category , and it is an article that was genetically modified by humans to have new properties such as the ability to digest multiple types of hydrocarbons thus satisfying the manufacture category.

Non-limiting examples of claims that are not directed to any of the statutory categories include:. As the courts' definitions of machines, manufactures and compositions of matter indicate, a product must have a physical or tangible form in order to fall within one of these statutory categories. Digitech, F. Thus, the Federal Circuit has held that a product claim to an intangible collection of information, even if created by human effort, does not fall within any statutory category.

Similarly, software expressed as code or a set of instructions detached from any medium is an idea without physical embodiment. See Microsoft Corp. Another example of an intangible product that does not fall within a statutory category is a paradigm or business model for a marketing company. In re Ferguson, F. Even when a product has a physical or tangible form, it may not fall within a statutory category. For instance, a transitory signal, while physical and real, does not possess concrete structure that would qualify as a device or part under the definition of a machine, is not a tangible article or commodity under the definition of a manufacture even though it is man-made and physical in that it exists in the real world and has tangible causes and effects , and is not composed of matter such that it would qualify as a composition of matter.

Nuijten, F. As such, a transitory, propagating signal does not fall within any statutory category. Like the other steps in the eligibility analysis, evaluation of this step should be made after determining what applicant has invented by reviewing the entire application disclosure and construing the claims in accordance with their broadest reasonable interpretation BRI.

A claim whose BRI covers both statutory and non-statutory embodiments embraces subject matter that is not eligible for patent protection and therefore is directed to non-statutory subject matter. Such claims fail the first step Step 1: NO and should be rejected under 35 U. In such a case, it is a best practice for the examiner to point out the BRI and recommend an amendment, if possible, that would narrow the claim to those embodiments that fall within a statutory category.

For example, the BRI of machine readable media can encompass non-statutory transitory forms of signal transmission, such as a propagating electrical or electromagnetic signal per se. See In re Nuijten, F. When the BRI encompasses transitory forms of signal transmission, a rejection under 35 U. Thus, a claim to a computer readable medium that can be a compact disc or a carrier wave covers a non-statutory embodiment and therefore should be rejected under 35 U.

See, e. If a claim is clearly not within one of the four categories Step 1: NO , then a rejection under 35 U. Form paragraphs 7. In such a case, it is a best practice for the examiner to recommend an amendment, if possible, that would resolve eligibility of the claim. Determining that a claim falls within one of the four enumerated categories of patentable subject matter recited in 35 U. Diamond v. Chakrabarty, U. See also Bilski v. For example, mathematical formulas are considered to be a judicial exception as they express a scientific truth, but have been labelled by the courts as both abstract ideas and laws of nature.

Thus, it is sufficient for this analysis for the examiner to identify that the claimed concept the specific claim limitation s that the examiner believes may recite an exception aligns with at least one judicial exception. The Court has held that a claim may not preempt abstract ideas, laws of nature, or natural phenomena; i. The concern over preemption was expressed as early as See Le Roy v.

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Tatham, 55 U. While preemption is the concern underlying the judicial exceptions, it is not a standalone test for determining eligibility.


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Rapid Litig. CellzDirect, Inc. Instead, questions of preemption are inherent in and resolved by the two-part framework from Alice Corp. Sequenom, Inc. See also Return Mail, Inc. Postal Service, -- F. August 28, ; Synopsys v. Mentor Graphics, F. Iatric Sys. Symantec Corp. McRO, Inc. Bandai Namco Games Am. See also Myriad, S. Ultramercial, Inc. Hulu, LLC, F. Like the other steps in the eligibility analysis, evaluation of this step should be made after determining what applicant has invented by reviewing the entire application disclosure and construing the claims in accordance with their broadest reasonable interpretation.

Step 2A asks: Is the claim directed to a law of nature, a natural phenomenon product of nature or an abstract idea? A claim is directed to a judicial exception when a law of nature, a natural phenomenon, or an abstract idea is recited i.

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For instance, the claims in Diehr set forth a mathematical equation in the repetitively calculating step, the claims in Mayo set forth laws of nature in the wherein clause, meaning that the claims in those cases contained discrete claim language that was identifiable as a judicial exception. The claims in Alice Corp. A claim directed to a judicial exception requires closer scrutiny for eligibility because of the risk that it will tie up the excluded subject matter and prevent others from using the law of nature, natural phenomenon, or abstract idea. See also Enfish, LLC v. Examiners should accordingly be careful to distinguish claims that recite an exception which require further eligibility analysis and claims that merely involve an exception which are eligible and do not require further eligibility analysis.

Further, examiners should consider the claim as a whole when performing the Step 2A analysis. However, this claim does not recite these natural principles and therefore is not directed to a judicial exception Step 2A: NO. Thus, the claim is eligible without further analysis. Unless it is clear that the claim recites distinct exceptions, such as a law of nature and an abstract idea, care should be taken not to parse a recited exception into multiple exceptions, particularly in claims involving abstract ideas.

For example, steps in a claim that recite the manipulation of information through a series of mental steps would be considered a single abstract idea for purposes of analysis rather than a plurality of separate abstract ideas to be analyzed individually. However, a claim reciting multiple exceptions is directed to at least one judicial exception Step 2A: YES regardless of whether the multiple exceptions are distinct from each other, and thus must be further analyzed in Step 2B. Nintendo Co. See Bilski v. Despite this long history, the courts have declined to define abstract ideas.

Instead, they have often identified abstract ideas by referring to earlier precedent, e. Amdocs Israel , Ltd. For example, in Alice Corp. Although the Supreme Court has not delimited the precise contours of the abstract idea exception, it is clear from the body of judicial precedent that software and business methods are not excluded categories of subject matter. Wells Fargo Bank, F. Likewise, software is not automatically an abstract idea, even if performance of a software task involves an underlying mathematical calculation or relationship.

Examiners should determine whether a claim recites an abstract idea by 1 identifying the claimed concept the specific claim limitation s in the claim under examination that the examiner believes may be an abstract idea , and 2 comparing the claimed concept to the concepts previously identified as abstract ideas by the courts to determine if it is similar. When making the determination of whether a claim is directed to an abstract idea, examiners should keep in mind that some inventions pertaining to improvements in computer functionality or to improvements in other technologies are not abstract when appropriately claimed, and thus may be eligible at Step 2A.

Federal Circuit decisions providing examples of such eligible claims include: Enfish, F. When finding that a claim is directed to such an improvement, it is critical that examiners give the claim its broadest reasonable interpretation BRI and evaluate both the specification and the claim. The specification should disclose sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement, and the claim itself must reflect the improvement in technology.

Other important considerations are the extent to which the claim covers a particular solution to a problem or a particular way to achieve a desired outcome, as opposed to merely claiming the idea of a solution or outcome, and whether the BRI is limited to computer implementation. For instance, if a claimed process can be performed without a computer, the Federal Circuit has indicated that it cannot improve computer technology.

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The Federal Circuit has also indicated that mere automation of manual processes or increasing the speed of a process where these purported improvements come solely from the capabilities of a general-purpose computer are not sufficient to show an improvement in computer-functionality. Westlake Services, F. Similarly, the Federal Circuit has indicated that a claim must include more than conventional implementation on generic components or machinery to qualify as an improvement to an existing technology.

AV Auto. LLC, F. Other claims may require the full eligibility analysis, for example a claim that is directed to an abstract idea rather than an improvement should be evaluated in Step 2B to determine whether it amounts to significantly more than the abstract idea. Examiners are reminded that even if an improvement is not clear enough to demonstrate eligibility in Step 2A, it may still contribute to the eligibility of a claim in the Step 2B analysis.

These claims include claims that do not recite abstract ideas, as well as claims that recite abstract ideas but that are, when viewed as a whole, directed to an improvement of a technological process or the functioning of a computer and not to an abstract idea. It should be noted that these associations are not mutually exclusive, i. For example, the concept of hedging claimed in Bilski was described by the Supreme Court as both a method of organizing human activity and a fundamental economic practice.

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Accordingly, examiners should rely on the concepts identified in the cases, not the judicial descriptors themselves, when determining whether a claimed concept is similar to a concept that the courts have identified as an abstract idea. Before concluding that a claim is directed to an abstract idea, examiners should consider the following principles, which are discussed with reference to non-limiting hypothetical examples of claims that are not directed to abstract ideas.


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  • Some claims are not directed to an abstract idea because they do not recite anything similar to a judicially-identified abstract idea, although it may be apparent that at some level they are based on or involve an abstract idea. Judicial decisions discussing such claims include Enfish, LLC v. CQG, Inc. App'x Fed. Non-limiting hypothetical examples of claims that do not set forth or describe an abstract idea include:.

    Some claims reciting an abstract idea are not directed to the abstract idea because they also recite additional elements such as an improvement demonstrating that the claims as a whole clearly do not seek to tie up the abstract idea. In such claims, the improvement, or other additional elements, shifts the focus of the claimed invention from the abstract idea that is incidentally recited. Judicial decisions discussing such claims include McRO, Inc. Bandai Namco Games America Inc. Another relevant case is Research Corporation Technologies Inc.

    While the claims in Research Corportation Technologies recited a step of generating the blue noise mask an iterative mathematical operation that is an abstract idea , they also recited additional steps that clearly improved the functioning of the claimed computer. Thus viewed in light of McRO and Enfish the claims are directed to the recited improvement and not to the abstract idea.

    Non-limiting hypothetical examples of claims that are not directed to an abstract idea because of an improvement or other limitation that renders the eligibility of the claim self-evident include:. An example of a case identifying a concept relating to performance of a financial transaction as abstract is buySAFE, Inc.

    Google, Inc. The patentee in buySAFE claimed a method in which a computer operated by the provider of a safe transaction service receives a request for a performance guarantee for an online commercial transaction, the computer processes the request by underwriting the requesting party in order to provide the transaction guarantee service, and the computer offers, via a computer network, a transaction guaranty that binds to the transaction upon the closing of the transaction.

    Another example is OIP Techs. The patentee in OIP Techs. Other examples of this type of concept include:. An example of a case identifying a concept relating to mitigating risk as abstract is Alice Corp. CLS Bank, S. The patentee in Alice Corp. A computer system is used as a third-party intermediary between the parties to the exchange.

    An example of a case identifying a concept relating to managing relationships or transactions between people, or satisfying or avoiding a legal obligation as abstract is buySAFE, Inc. Another example is Dealertrack v. Huber, F. The patentee in Dealertrack claimed processes of managing a credit application, comprising receiving credit application data from a first source, selectively forwarding the credit application data to remote funding sources, and then forwarding funding decision data from a remote funding source back to the first source.

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    And another example is Bancorp Services. Sun Life Assurance Co. The patentee in Bancorp claimed methods and systems for managing a life insurance policy on behalf of a policy holder, which comprised steps including generating a life insurance policy including a stable value protected investment with an initial value based on a value of underlying securities, calculating surrender value protected investment credits for the life insurance policy; determining an investment value and a value of the underlying securities for the current day; and calculating a policy value and a policy unit value for the current day.

    An example of a case identifying a concept relating to advertising, marketing, and sales activities or behaviors as abstract is Apple, Inc. Ameranth, Inc. The patentee in Ameranth claimed a system for generating and transmitting menus, e. The court also described the claimed invention as adding conventional computer components to well-known business practices, e.

    An example of a case identifying a concept relating to managing human behavior as abstract is Intellectual Ventures I LLC v. The patentee in this case claimed methods comprising storing user-selected pre-set limits on spending in a database, and when one of the limits is reached, communicating a notification to the user via a device.

    Another example of this type of concept includes:. The patentee in BASCOM claimed a system for filtering content retrieved from an Internet computer network, comprising a local client computer and a remote ISP server that implements at least one filtering scheme and a plurality of sets of logical filtering elements. The patentee in this case claimed a system for providing web pages tailored to an individual user, comprising an interactive interface having a display that depicts customized content based on 1 information known about the user and 2 navigation data.

    The Federal Circuit determined that both types of customization were abstract ideas. Retail Decisions, Inc. Group v. SAP Am. Information as such is an intangible. Housey Pharm. Accordingly, we have treated collecting information, including when limited to particular content which does not change its character as information , as within the realm of abstract ideas. In a similar vein, we have treated analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category.

    Advanced Biological Labs. And we have recognized that merely presenting the results of abstract processes of collecting and analyzing information, without more such as identifying a particular tool for presentation , is abstract as an ancillary part of such collection and analysis. Alstom, S. An example of a case identifying a concept relating to a data comparison that can be performed mentally as abstract is CyberSource Corp. Retail Decisions, F. The patentee in CyberSource claimed a method for verifying the validity of a credit card transaction over the Internet, and a computer-readable medium comprising program instructions for performing the method.

    The method comprised obtaining information about other transactions that have utilized an Internet address identified with the credit card transaction to be verified, constructing a map of credit card numbers based on the other transactions, and utilizing the map to determine if the credit card transaction is valid.

    Although the patentee argued that the method could not be performed without the Internet, nothing in the claim required use of the Internet to obtain the data as opposed to obtaining the data from a pre-compiled database. Another example is University of Utah Research Foundation v. Ambry Genetics, F. An example of a case identifying a concept relating to a data comparison that is analogous to human mental work as abstract is Mortgage Grader, Inc. First Choice Loan Servs. The patentee in Mortgage Grader claimed a computer-implemented system for enabling borrowers to anonymously shop for loan packages offered by a plurality of lenders, comprising a database that stores loan package data from the lenders, and a computer system providing an interface and a grading module.

    An example of a case identifying a concept relating to organizing or analyzing information in a way that can be performed mentally as abstract is Synopsys, Inc. In Synopsys, the patentee claimed methods of logic circuit design, comprising converting a functional description of a level sensitive latch into a hardware component description of the latch.

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    Although the patentee argued that the claims were intended to be used in conjunction with computer-based design tools, the claims did not include any limitations requiring computer implementation of the methods and thus do not involve the use of a computer in any way. An example of a case identifying a concept relating to organizing or analyzing information in a way that is analogous to human mental work as abstract is Content Extraction and Transmission LLC v. Wells Fargo Bank, N. In Content Extraction, the patentee claimed an application program interface comprising a scanner that extracted data from hard copy documents, a processor that recognized specific information from the extracted data, and a memory that stored the recognized information.

    An example of a case identifying a concept as an idea having no particular concrete or tangible form as abstract is Ultramercial, Inc. The patentee in Ultramercial claimed an eleven-step method for displaying an advertisement ad in exchange for access to copyrighted media, comprising steps of receiving copyrighted media, selecting an ad, offering the media in exchange for watching the selected ad, displaying the ad, allowing the consumer access to the media, and receiving payment from the sponsor of the ad.

    Another example is Versata Dev. SAP America, Inc. The patentee in Versata claimed a system and method for determining a price of a product offered to a purchasing organization, comprising arranging a hierarchy of organizational groups and a hierarchy of product groups, storing pricing information associated with the organizational and product groups, retrieving and sorting applicable pricing information, and determining the product price using the sorted pricing information.

    Another example of this type of concept is In re Brown, Fed. App'x , Fed. The applicant in Brown claimed a method of cutting hair that effectively allocates hair weight in opposition to head shape, comprising identifying a head shape, designating the head into at least three partial zones, identifying at least three hair patterns, assigning at least one of the hair patterns to each partial zone to either build weight or remove weight, and using scissors to cut hair according to the assigned hair pattern.

    In re Grams, F. Words used in a claim operating on data to solve a problem can serve the same purpose as a formula. In the past, the Supreme Court sometimes described mathematical concepts as laws of nature, and at other times described these concepts as judicial exceptions without specifying a particular type of exception. More recent opinions of the Supreme Court, however, have affirmatively characterized mathematical relationships and formulas as abstract ideas.

    An example of a case identifying a concept relating to a mathematical relationship or formula as a judicial exception is Diamond v. The Supreme Court noted that a mathematical formula such as the claimed Arrhenius equation is an exception like a scientific principle or natural phenomenon, is non-statutory subject matter an exception.

    See also Mayo Collaborative Servs. An example of a case identifying a concept relating to performing mathematical calculations as abstract is Bancorp Servs. Sun Life Assur. Another example is Digitech Image Techs. Electronics for Imaging, Inc. The patentee in Digitech claimed methods of generating first and second data by taking existing information, manipulating the data using mathematical formulas, and organizing this information into a new form. The court explained that such claims were directed to an abstract idea because they described a process of organizing information through mathematical correlations, like Flook's method of calculating using a mathematical formula.

    Seed Co. Kalo Inoculant Co. Morse, 56 U. The courts have identified the following concepts and products as examples of laws of nature or natural phenomena:. See Rapid Litig. See also Tilghman v. Proctor, U. A claim that does not recite a law of nature or natural phenomenon is eligible Step 2A: NO at Pathway B unless the claim recites another exception such as an abstract idea, or a product of nature.

    For example, the isolated DNA of Myriad and the primers of Ambry Genetics were described as products of nature by the courts. As explained in those decisions, products of nature are considered to be an exception because they tie up the use of naturally occurring things, but they have been labeled as both laws of nature and natural phenomena. See Myriad Genetics, Inc. It is important to keep in mind that product of nature exceptions include both naturally occurring products and non-naturally occurring products that lack markedly different characteristics from any naturally occurring counterpart.

    As the Supreme Court made clear, neither naturally occurring compositions of matter, nor synthetically created compositions that are structurally identical to the naturally occurring compositions, are patent eligible. Thus, a synthetic, artificial, or non-naturally occurring product such as a cloned organism or a human-made hybrid plant is not automatically eligible because it was created by human ingenuity or intervention.

    Ag Supply, Inc. Instead, the key to the eligibility of all non-naturally occurring products is whether they possess markedly different characteristics from any naturally occurring counterpart. Nature-based products, as used herein, include both eligible and ineligible products and merely refer to the types of products subject to the markedly different characteristics analysis used to identify product of nature exceptions.

    Examples of nature-based products include the isolated gene and cDNA sequences of Myriad, the cloned farm animals of Roslin, and the bacterium of Chakrabarty. It is important to keep in mind that under the broadest reasonable interpretation BRI of the claims, a nature-based product limitation may encompass both eligible and ineligible products. Roslin, F. If the claim is ultimately rejected as failing to encompass an inventive concept Step 2B: NO , it is a best practice for the examiner to point out the broadest reasonable interpretation and recommend an amendment, if possible, that would narrow the claim to those embodiments that are not directed to products of nature, or that are otherwise eligible.

    In such cases, it would not be necessary to conduct a markedly different characteristics analysis. The markedly different characteristics analysis is part of Step 2A, because the courts use this analysis to identify product of nature exceptions. This section sets forth guidelines for performing the markedly different characteristics analysis, including information on when to perform the analysis, and how to perform the analysis.

    Examiners should consult these guidelines when performing an eligibility analysis of a claim that recites a nature-based product limitation. If the claim includes a nature-based product that has markedly different characteristics, then the claim does not recite a product of nature exception and is eligible Step 2A: NO at Pathway B unless the claim recites another exception such as a law of nature or abstract idea, or a different natural phenomenon. For claims where the entire claim is a single nature-based product e.

    For claims including limitations in addition to the nature-based product, examiners should consider whether the claim recites another exception and thus requires further eligibility analysis. Because a nature-based product can be claimed by itself e. Where the claim is to a nature-based product by itself e. Where the claim is to a nature-based product produced by combining multiple components e. For instance, for the probiotic composition example, the mixture of Lactobacillus and milk should be analyzed for markedly different characteristics, rather than the Lactobacillus separately and the milk separately.

    Where the claim is to a nature-based product in combination with non-nature based elements e. For instance, for the yogurt starter kit example, the Lactobacillus would be analyzed for markedly different characteristics. The container and instructions would not be subject to the markedly different characteristics analysis as they are not nature-based products, but would be evaluated as additional elements in Step 2B if it is determined that the Lactobacillus does not have markedly different characteristics from any naturally occurring counterpart and thus is a product of nature exception.

    For a product-by-process claim e. For a process claim, the general rule is that the claim is not subject to the markedly different analysis for nature-based products used in the process. This is because the analysis of a process claim should focus on the active steps of the process rather than the products used in those steps. For example, when evaluating a claimed process of cryopreserving hepatocyte cells comprising performing density gradient fractionation to separate viable and non-viable hepatocytes, recovering the viable hepatocytes, and cryopreserving the recovered viable hepatocytes, the court did not subject the claim to the markedly different characteristics analysis for the nature-based products the hepatocytes used in the process.

    However, in the limited situation where a process claim reciting a nature-based product is drafted in such a way that there is no difference in substance from a product claim, the claim is subject to the markedly different analysis for the recited nature-based product.

    These types of claims are drafted in a way that focuses on the product rather than the process steps. Sequenom, F. The markedly different characteristics analysis compares the nature-based product limitation to its naturally occurring counterpart in its natural state. If the analysis indicates that a nature-based product limitation does not exhibit markedly different characteristics, then that limitation is a product of nature exception.

    If the analysis indicates that a nature-based product limitation does have markedly different characteristics, then that limitation is not a product of nature exception. Examiners should keep in mind that if the nature-based product limitation is naturally occurring, there is no need to perform the markedly different characteristics analysis because the limitation is by definition directed to a naturally occurring product and thus falls under the product of nature exception.

    However, if the nature-based product limitation is not naturally occurring, for example due to some human intervention, then the markedly different characteristics analysis must be performed to determine whether the claimed product limitation is a product of nature exception. Because the markedly different characteristics analysis compares the nature-based product limitation to its naturally occurring counterpart in its natural state, the first step in the analysis is to select the appropriate counterpart s to the nature-based product.