Project 2025 Tracker / What’s done, what’s next

21. Department of Commerce · Notable

Re-examine Section 101 patent eligibility and back reforms

Partially done

685 21. Department of Commerce · abridged

“Re-examine patent eligibility requirements in Section 101 of the Patent Act and support internal and/or legislative reforms to enable U.S. leadership in critical and emerging technologies such as quantum computing, 5G, and artificial intelligence.”

What has happened

  1. Partially done

    The internal reform is being iterated rather than announced once. Director Squires issued a fourth memorandum, to all patent applicants and practitioners this time, superseding his own December 2025 "Best Practices" memo on Rule 132 subject-matter-eligibility declarations: "In the approximately five months since the release of our December 4, 2025 … Office Memorandum, we have received positive feedback. Practitioner responses have been particularly helpful in providing the Office with both 'market information' and documented evidence of real-world application of inventive ideas to assess eligibility under 35 U.S.C. § 101." It also records a structural change on the ask's own subject: "The USPTO has created the position of Deputy Commissioner for Patents focused on AI Policy, Practice, and Operations", filled by Barry J. Schindler, whose suggestion was to make the memorandum "a living document" updated on practitioner experience. Still `partial`, and for the same reason: quantum computing and 5G, which the Quote names alongside artificial intelligence, appear in none of the four instruments.

  2. Partially done

    Director John Squires's own memorandum to the Patent Examining Corps completed the internal limb, and states the Mandate's rationale almost verbatim. It recounts that his first official act was to sign two patents in distributed-ledger and medical-diagnostic technologies, "technical fields that have far too often faced conflicting (and confusing) questions about patent subject matter eligibility"; that he then issued a rare Appeals Review Panel decision in Ex parte Desjardins vacating a PTAB sua sponte §101 rejection of machine-learning claims; and that he designated Desjardins precedential on 2025-11-04 so its reasoning "binds all examination and appeals activity". The panel's own warning is quoted: categorically excluding AI innovations from patent protection "jeopardized America's leadership in [] critical emerging technolog[ies]". The Deputy Commissioner followed on 2025-12-05 with advance notice folding Desjardins into MPEP §§2106.04(d)(1) and 2106.05(a), and on 2026-04-30 with best practices for Rule 132 subject-matter-eligibility declarations. `partial` and not `done`: the Quote enumerates quantum computing, 5G and artificial intelligence, and every one of these instruments reaches software, AI and machine learning only, while the legislative half of "internal and/or legislative reforms" is untouched.

  3. Partially done

    The Patent and Trademark Office re-examined how §101 is applied and issued the first of four in-window instruments. The Deputy Commissioner for Patents memorandum to Technology Centers 2100, 2600 and 3600 — the software, communications and business-method corps — gave examiners binding reminders on Step 2A of the eligibility analysis: how far the mental-process grouping reaches, the difference between a claim that recites a judicial exception and one that merely involves one, analysis of the claim as a whole, and when a claim is directed to an improvement in the functioning of a computer rather than using a computer as a tool. It names Artificial Intelligence and Machine Learning as the arts where examiners struggle. This is the Quote's "internal" reform limb beginning; §101 itself is unamended and the Patent Eligibility Restoration Act of 2025 (H.R. 3152, S. 1546, both introduced 2025-05-01) has not left committee.

Research log

What was searched, and what didn’t count as evidence

Research notes

requires_congress was cleared on 2026-09-01 in the ticket-26 phase-2 sweep. The Quote asks the Administration to re-examine §101 and to support reforms that may be “internal and/or legislative”; the act asked for is the re-examination, which is the USPTO’s own, and legislation is one of two routes it might lead to. Under playbook §3b the flag records the addressee, not that contingency.

Corrected 2026-09-06 (read-queue ticket 07). The 2026-08-31 pass recorded not started on the finding that “no dated eligibility memorandum of the window could be matched” on uspto.gov. That was wrong, and it was wrong because the sitemap was searched rather than the page that indexes these documents. uspto.gov/patents/laws/examination-policy/subject-matter-eligibility is the Office’s own index of §101 guidance and it lists four in-window instruments, three of them memoranda to the examining corps: 2025-08-04 (Reminders on evaluating subject matter eligibility), 2025-12-04 (Director Squires on Subject Matter Eligibility Declarations), 2025-12-05 (advance notice of the MPEP change for Ex parte Desjardins) and 2026-04-30 (best practices for Rule 132 SMEDs, superseding the December 2025 Director’s memo). All four are PDFs under uspto.gov/sites/default/files/documents/ and all four open to scripts/fetch-page.mjs on the bare rung — uspto.gov is listed as a 403 wall in the playbook’s fetch-mechanics section and is not one, at least for these paths.

Round 3’s sixth trap caught the last of them and is worth recording: the 2026-04-30 memorandum is a scan with no OCR layer. pdftotext -layout returns zero lines from a 669 KB file whose metadata says Creator “RICOH IM C4510” — the Office signed it in ink and photocopied it. It was read by rendering with pdftoppm -png -r 110, which is where the quotations in the 2026-04-30 event come from.

The legislative limb is unchanged and still not started on its own: negative search by jq title pass over bills.ndjson for Patent Eligibility (the two 2025-05-01 bills, both still in committee) and for patent eligib; jq over public-laws.ndjson for Patent (0); Federal Register full text since 2025-01-20 for "section 101" + patent and for "subject matter eligibility" (nothing from USPTO — these memoranda are not Federal Register documents); and the DOC/PTO slice of reginfo.gov’s Unified Agenda, all eleven RINs opened.

Action
other
Object
Section 101 of the Patent Act
ID
1904