The (revised) chart above shows the percentage of issued utility patents whose claims include at least one reference to the term non-transitory.
The chart does not reflect any kind of innovation transformation. Rather, in a February 2010 memo, PTO Dir. Kappos announced that claims directed toward information stored in computer readable memory would be rejected as ineligible under Section 101.
The USPTO recognizes that applicants may have claims directed to computer readable media that cover signals per se, which the USPTO must reject under 35 U.S.C. § 101 as covering both non-statutory subject matter and statutory subject matter. In an effort to assist the patent community in overcoming a rejection or potential rejection under 35 U.S.C. § 101 in this situation, the USPTO suggests the following approach. A claim drawn to such a computer readable medium that covers both transitory and non-transitory embodiments may be amended to narrow the claim to cover only statutory embodiments to avoid a rejection under 35 U.S.C. § 101 by adding the limitation "non-transitory" to the claim. Cf. Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (suggesting that applicants add the limitation "non-human" to a claim covering a multi-cellular organism to avoid a rejection under 35 U.S.C. § 101). Such an amendment would typically not raise the issue of new matter, even when the specification is silent because the broadest reasonable interpretation relies on the ordinary and customary meaning that includes signals per se. The limited situations in which such an amendment could raise issues of new matter occur, for example, when the specification does not support a non-transitory embodiment because a signal per se is the only viable embodiment such that the amended claim is impermissibly broadened beyond the supporting disclosure. See, e.g., Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473 (Fed. Cir. 1998).
Note on the data:
- Limited to only US utility patents;
- Limited to only look at independent claims;
- Search included “non transitory”; “non-transitory” and “nontransitory”.
In the vast majority of cases, only one of the independent claims uses the non-transitory language. 97% of the patents included at least one additional independent claim that does not use the language. Are those claims directed to code-stored-on-a-disk valuable and important?