Mental processes<\/strong>\u2013 concepts performed in the human mind (including observation, evaluation, judgment, and opinion).
\nThus, in Step 2A, you must determine whether your claim is “directed to” one of these three types of abstract ideas. Step 2A answers this question with two “prong” inquiries:<\/li>\n<\/ol>\n\u2022 Prong One<\/strong>: Does the claim set forth or describe an abstract idea?
\n\u2022 Prong Two<\/strong>: Does the claim integrate the abstract idea into a practical application?<\/p>\nThis 2A Prong Two excludes the well-understood, routine, conventional (WURC) consideration, part of step 2B. This exclusion is important because Step 2A excludes a review of WURC by the patent office Examiner; thus, a claim that includes WURC elements may still integrate an exception into a practical application.<\/p>\n
In Step 2B, the question is: Does the claim recite additional elements that amount to significantly more than the abstract idea? To assess, you must analyze the “additional elements” in the claim, i.e., the elements that are not the abstract idea. These elements are analyzed to determine whether they define an “inventive concept.” Be mindful that the “inventive concept” here is in the context of patent eligibility under Section 101 and is unrelated to whether the claim is sufficiently innovative. These questions are dealt with as “novelty” and “non-obviousness” under Sections 102 and 103 of the patent statute.<\/p>\n
Instead, the “inventive concept” analysis at Step 2B is done by determining whether the additional elements of the claim amount to “significantly more”. Although, this may appear like the analysis in Step 2A, which determines whether the claim integrates the abstract idea into a practical application. Even the patent office acknowledged that Steps 2A and 2B overlap strongly. For example, the MPEP states: “Although the conclusion of whether a claim is eligible at Step 2B requires that all relevant considerations be evaluated, most of these considerations were already evaluated in Step 2A Prong Two.”<\/p>\n
Still, steps 2A and 2B are certainly not identical. For example, as mentioned before, in Step 2B, the Examiner may determine that the additional elements in your claim define only WURC, which is not considered at Step 2A. This does have a benefit. The types of claim limitations that can make a claim patent-eligible under Prong 2 of Step 2A can also be used for patent eligibility in Step 2B. Thus, you have two opportunities for getting patent eligibility. Therefore, if, at the end of Step 2B, the additional elements in the claim amount to significantly more than the abstract idea, the claim passes the test and should not be rejected as an ineligible abstract idea.<\/p>\n