UNITED 3TAm%PATENT AND WEMARKOFFICE --

MEMORANDUM

DATE: July 27,2010 TO:

FRQM: Acting Associate Commissioner For Patent Examination Policy

SUBJECT: Interim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bikski v. Kappas

The attached Federal Register notice entitled Interim Guidance for Determining Subject fitter Eligibility far Process Claims inView of Bihki v. Kappos (hterim Bilski Guidanm}is for use by USPTO personnel in determining subject matter eligibilityunder 35 U.S.C..§ 101 in view ofthe recent decision by the United States Supreme Court (Supreme Court) in BiIski v, &~p5,561 U.S. -(20 10) (Bilski). The I~arerimBilski Guidance is a supplementto the previously issued Interim Examinabion Instructionsfor Evaluating Subject Matter Eligibility Under 35 L6.S.C. j 151 dadAugust 24,2009 (Augwst 2009 Ikterim Imtrucdiom) and the memorandum to the Patent Examining Corps on the Supme Court hision in BiIski dated June 28,2010, The August 2009 Interim imfrucbiumam to be consulted for determiniug subject matter eligibilityunder 35 U.S.C. 5 101 of , composition, and manufacture claims.

The Interim Bihki Guidance provides factorsto consider in deterrnirling whether a claim is directed to an abstract idea and is therefo~enot patent-eligible under 35 U.S.C. 5 101. Under tke Interim Bilski Guihce, factors that weigh in favor af patent-eligibility satisfy the criteria af the machine- or-transformation test or provide evidence that the abstract idea has been pradically applied, and factors that weigh against patent-eligibilityneithersatisfy the criteria of the machine-or- transfurmation test nor provide evidence that the abstract idea has been pmtically applied. A summary sheet offiese factors is also attached bthis memorandum. The machine-or- transformation test remains an investigative tool and is a useful starti.ng point for determining whether a claimed inventionis a patent-eligible process under 35 U.S.C. 5 101. The Infe~irnBiski Gwidmceprovides additional factors to aid in the determination of whether a claimed method that fails the machinwr-transftmmtiontest is nonethelesspatenteligible (is.,is not an abstmct idea), and also whether aclaimed method that meets the machine-or-transformationtest is nonetheless patent-ineligible(Le., is an abstract idea). Since claims dir&d to abstract ideas were not patent- eligible prior to BilskmSsubject matter eligibilityoutcomes based on~e interim Bilski Guidance are not likeiy to change in most MS. The difference is that in some rare cases, factors beyond those relevant to mwhine-or-transformation may weigh for or against a finding that a claim is directed to an abstract idea.

Finally, under the principles of compact prosecution, Office personnel should state all non- cumulative masons and bases for rejecting claims in the frst Office action, and should avoid focusing on issues of paten-eligibility under 35 U.S.C, 4 101 to the detriment of consideringan appIication for compliance with the requirements of 35 U.S.C,95 102, 103, and 112, and also avoid treating an application solely on the basis of patent-eligibilityunder 35 U.S.C. 4 101except in the most extreme cases.

101 Method Eligibility Quick Reference Sheet

The factors below should be considered when analyzing the claim as a whole to evaluate whether a method claim is directed to an abstract idea. However, not every factor will be relevant to every claim and, as such, need not be considered in every analysis. When it is determined that the claim is patent-eligible, the analysis may be concluded. In those instances where patent-eligibility cannot easily be identified, every relevant factor should be carefully weighed before making a conclusion. Additionally, no factor is conclusive by itself, and the weight accorded each factor will vary based upon the facts of the application. These factors are not intended to be exclusive or exhaustive as there may be more pertinent factors depending on the particular technology of the claim. For assistance in applying these factors, please consult the accompanying “Interim Guidance” memo and TC management.

Factors Weighing Toward Eligibility: • Recitation of a machine or transformation (either express or inherent). o Machine or transformation is particular. o Machine or transformation meaningfully limits the execution of the steps. o Machine implements the claimed steps. o The article being transformed is particular. o The article undergoes a change in state or thing (e.g., objectively different function or use). o The article being transformed is an object or substance. • The claim is directed toward applying a law of nature. o Law of nature is practically applied. o The application of the law of nature meaningfully limits the execution of the steps. • The claim is more than a mere statement of a concept. o The claim describes a particular solution to a problem to be solved. o The claim implements a concept in some tangible way. o The performance of the steps is observable and verifiable.

Factors Weighing Against Eligibility: • No recitation of a machine or transformation (either express or inherent). • Insufficient recitation of a machine or transformation. o Involvement of machine, or transformation, with the steps is merely nominally, insignificantly, or tangentially related to the performance of the steps, e.g., data gathering, or merely recites a field in which the method is intended to be applied. o Machine is generically recited such that it covers any machine capable of performing the claimed step(s). o Machine is merely an object on which the method operates. o Transformation involves only a change in position or location of article. o “Article” is merely a general concept (see notes below). • The claim is not directed to an application of a law of nature. o The claim would monopolize a natural force or patent a scientific fact; e.g., by claiming every mode of producing an effect of that law of nature. o Law of nature is applied in a merely subjective determination. o Law of nature is merely nominally, insignificantly, or tangentially related to the performance of the steps. • The claim is a mere statement of a general concept (see notes below for examples). o Use of the concept, as expressed in the method, would effectively grant a monopoly over the concept. o Both known and unknown uses of the concept are covered, and can be performed through any existing or future-devised machinery, or even without any apparatus. o The claim only states a problem to be solved. o The general concept is disembodied. o The mechanism(s) by which the steps are implemented is subjective or imperceptible.

1 NOTES:

1) Examples of general concepts include, but are not limited, to: Basic economic practices or theories (e.g., hedging, insurance, financial transactions, marketing); Basic legal theories (e.g., contracts, dispute resolution, rules of law); Mathematical concepts (e.g., algorithms, spatial relationships, geometry); Mental activity (e.g., forming a judgment, observation, evaluation, or opinion); Interpersonal interactions or relationships (e.g., conversing, dating); Teaching concepts (e.g., memorization, repetition); Human behavior (e.g., exercising, wearing clothing, following rules or instructions); Instructing “how business should be conducted.”

2) For a detailed explanation of the terms machine, transformation, article, particular, extrasolution activity, and field-of-use, please refer to the Interim Patent Subject Matter Eligibility Examination Instructions of August 24, 2009.

3) When making a subject matter eligibility determination, the relevant factors should be weighed with respect to the claim as a whole to evaluate whether the claim is patent-eligible or whether the abstract idea exception renders the claim ineligible. When it is determined that the claim is patent-eligible, the analysis may be concluded. In those instances where patent-eligibility cannot be easily identified, every relevant factor should be carefully weighed before making a conclusion. Not every factor will be relevant to every claim. While no factor is conclusive by itself, the weight accorded each factor will vary based upon the facts of the application. These factors are not intended to be exclusive or exhaustive as there may be more pertinent factors depending on the particular technology of the claim.

4) Sample Form Paragraphs: a. Based upon consideration of all of the relevant factors with respect to the claim as a whole, claim(s) [1] held to claim an abstract idea, and is therefore rejected as ineligible subject matter under 35 U.S.C. § 101. The rationale for this finding is explained below: [2]

1. In bracket 2, identify the decisive factors weighing against patent-eligibility, and explain the manner in which these factors support a conclusion of ineligibility. The explanation needs to be sufficient to establish a prima facie case of ineligibility under 35 U.S.C. § 101. b. Dependent claim(s) [1] when analyzed as a whole are held to be ineligible subject matter and are rejected under 35 U.S.C. § 101 because the additional recited limitation(s) fail(s) to establish that the claim is not directed to an abstract idea, as detailed below: [2]

1. In bracket 2, provide an explanation as to why the claim is directed to an abstract idea; for instance, that the additional limitations are no more than a field of use or merely involve insignificant extrasolution activity; e.g., data gathering. The explanation needs to be sufficient to establish a prima facie case of ineligibility under 35 U.S.C. § 101.

2 43922 Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Notices

administrative review. As a result of our this review, a prior review, or the DEPARTMENT OF COMMERCE review, we determine that a weighted- original investigation but the average dumping margin of 2.43 percent manufacturer is, the cash-deposit rate United States Patent and Trademark exists for Far Eastern Textile Limited for will be the rate established for the most Office the period May 1, 2008, through April recent period for the manufacturer of [Docket No. PTO–P–2010–0067] 30, 2009. the merchandise; (4) the cash-deposit Assessment Rates rate for all other manufacturers or Interim Guidance for Determining exporters will continue to be 7.31 Subject Matter Eligibility for Process The Department shall determine and Claims in View of Bilski v. Kappos U.S. Customs and Border Protection percent, the all-others rate established (CBP) shall assess antidumping duties in Notice of Amended Final AGENCY: United States Patent and on all appropriate entries. Although Far Determination of Sales at Less Than Trademark Office, Commerce. Eastern Textile Limited indicated that it Fair Value: Certain Polyester Staple ACTION: Notice; Request for comments. was not the importer of record for any Fiber From the Republic of Korea and of its sales to the United States during Antidumping Duty Orders: Certain SUMMARY: The United States Patent and the period of review, it reported the Polyester Staple Fiber From the Trademark Office (USPTO or Office) has names of the importers of record for all Republic of Korea and Taiwan, 65 FR prepared Interim Guidance for of its U.S. sales. Because Far Eastern 33807 (May 25, 2000). These cash- Determining Subject Matter Eligibility Textile Limited also reported the deposit requirements shall remain in for Process Claims in view of Bilski v. entered value for all of its U.S. sales, we effect until further notice. Kappos (Interim Bilski Guidance) for its have calculated importer-specific personnel to use when determining assessment rates for the merchandise in Notifications subject matter eligibility under 35 U.S.C. 101 in view of the recent question by aggregating the dumping This notice serves as a final reminder margins we calculated for all U.S. sales decision by the United States Supreme to importers of their responsibility to each importer and dividing this Court (Supreme Court) in Bilski v. under 19 CFR 351.402(f)(2) to file a amount by the total entered value of Kappos, No. 08–964 (June 28, 2010). It those sales. certificate regarding the reimbursement is intended to be used by Office The Department clarified its of antidumping duties prior to personnel as a supplement to the ‘‘automatic assessment’’ regulation on liquidation of the relevant entries previously issued Interim Examination May 6, 2003. This clarification will during this review period. Failure to Instructions for Evaluating Subject apply to entries of subject merchandise comply with this requirement could Matter Eligibility Under 35 U.S.C. 101 during the period of review produced by result in the Secretary’s presumption dated August 24, 2009 (Interim Far Eastern Textile Limited for which it that reimbursement of antidumping Instructions) and the memorandum to did not know its merchandise was duties occurred and the subsequent the Patent Examining Corps on the destined for the United States. In such assessment of doubled antidumping Supreme Court Decision in Bilski v. instances, we will instruct CBP to duties. Kappos dated June 28, 2010. This guidance supersedes previous guidance liquidate unreviewed entries at the all- This notice also serves as a reminder others rate if there is no rate for the on subject matter eligibility that to parties subject to the administrative conflicts with the Interim Bilski intermediate company(ies) involved in protective order (APO) of their the transaction. For a full discussion of Guidance. Any member of the public responsibility concerning the this clarification, see Antidumping and may submit written comments on the disposition of proprietary information Countervailing Duty Proceedings: Interim Bilski Guidance. The Office is Assessment of Antidumping Duties, 68 disclosed under APO in accordance especially interested in receiving FR 23954 (May 6, 2003). with 19 CFR 351.305(a)(3). Timely comments regarding the scope and The Department intends to issue notification of the destruction of APO extent of the holding in Bilski. assessment instructions directly to CBP materials or conversion to judicial DATES: The Interim Bilski Guidance is 15 days after publication of these final protective order is hereby requested. effective July 27, 2010. This guidance results of review. Failure to comply with the regulations applies to all applications filed before, and the terms of an APO is a on or after the effective date of July 27, Cash-Deposit Requirements sanctionable violation. 2010. Comment Deadline Date: To be The following deposit requirements We are issuing and publishing these will be effective upon publication of ensured of consideration, written results and this notice in accordance this notice of final results of comments must be received on or before with sections 751(a)(1) and 777(i)(1) of administrative review for all shipments September 27, 2010. No public hearing of PSF from Taiwan entered, or the Act. will be held. withdrawn from warehouse, for Dated: July 19, 2010. ADDRESSES: Comments concerning this consumption on or after the date of Ronald K. Lorentzen. Interim Bilski Guidance should be sent publication, as provided by section Deputy Assistant Secretary for Import by electronic mail message over the 751(a)(1) of the Act: (1) The cash- Administration. Internet addressed to deposit rate for Far Eastern Textile [email protected] or facsimile Limited will be 2.43 percent; (2) for Appendix transmitted to (571) 273–0125. merchandise exported by manufacturers Comments may also be submitted by 1. Exchange Rates. or exporters not covered in this review mail addressed to: Mail Stop but covered in the original less-than- 2. Selection of Normal Value. Comments—Patents, Commissioner for fair-value investigation or previous [FR Doc. 2010–18391 Filed 7–26–10; 8:45 am] Patents, P.O. Box 1450, Alexandria, VA reviews, the cash-deposit rate will BILLING CODE 3510–DS–P 22313–1450. Although comments may continue to be the company-specific rate be submitted by facsimile or mail, the published for the most recent period; (3) Office prefers to receive comments via if the exporter is not a firm covered in the Internet.

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The comments will be available for comment period until November 9, Section III of this Interim Bilski public inspection at the Office of the 2009). Guidance provides guidance on the Commissioner for Patents, located in Members of the public are invited to abstract idea exception to subject matter Madison East, Tenth Floor, 600 Dulany review the Interim Bilski Guidance eligibility as set forth in Bilski, and Street, Alexandria, Virginia, and will be (below) and provide comments. The section IV of this Interim Bilski available via the USPTO Internet Web Office is particularly interested in Guidance provides guidance on factors site, (address: http://www.uspto.gov). receiving comments in response to the relevant to reviewing method claims for Because comments will be available for following questions: subject matter eligibility in view of public inspection, information that is 1. What are examples of claims that Bilski. To aid examiners in not desired to be made public, such as do not meet the machine-or- implementing this guidance, a summary an address or phone number, should not transformation test but nevertheless sheet of factors which may be useful for be included in the comments. remain patent-eligible because they do determining subject matter eligibility of a method claim is provided at the end FOR FURTHER INFORMATION CONTACT: not recite an abstract idea? 2. What are examples of claims that of this Interim Bilski Guidance. Caroline D. Dennison, Legal Advisor, Section V of this Interim Bilski Office of Patent Legal Administration, meet the machine-or-transformation test but nevertheless are not patent-eligible Guidance discusses how to make the Office of the Associate Commissioner determination of eligibility. To for Patent Examination Policy, by because they recite an abstract idea? 3. The decision in Bilski suggested summarize, in order for the examiner to telephone at (571) 272–7729, or by mail make a proper prima facie case of addressed to: Mail Stop Comments— that it might be possible to ‘‘defin[e] a narrower category or class of patent ineligibility, the examiner will evaluate Patents, Commissioner for Patents, P.O. the claim as a whole and weigh the Box 1450, Alexandria, VA 22313–1450, applications that claim to instruct how business should be conducted,’’ such relevant factors set forth in Bilski and marked to the attention of Caroline D. previous Supreme Court precedent and Dennison. that the category itself would be unpatentable as ‘‘an attempt to patent make a determination of compliance SUPPLEMENTARY INFORMATION: The abstract ideas.’’ Bilski slip op. at 12. Do with the subject matter eligibility prong USPTO has prepared interim guidance any such ‘‘categories’’ exist? If so, how of § 101. The Office will then consider (Interim Bilski Guidance) for its does the category itself represent an rebuttal arguments and evidence personnel to use when determining ‘‘attempt to patent abstract ideas?’’ supporting subject matter eligibility. subject matter eligibility under 35 II. Summary: The Bilski Court U.S.C. 101 in view of the recent Interim Guidance for Determining underscored that the text of § 101 is decision by the United States Supreme Subject Matter Eligibility for Process expansive, specifying four independent Court (Supreme Court) in Bilski. It is Claims in view of Bilski v. Kappos categories of inventions eligible for intended to be used by Office personnel (Interim Bilski Guidance) protection, including processes, as a supplement to the previously I. Overview: This Interim Bilski machines, manufactures, and issued Interim Examination Instructions Guidance is for determining patent- compositions of matter. See slip op. at for Evaluating Subject Matter Eligibility eligibility of process claims under 35 4 (‘‘In choosing such expansive terms Under 35 U.S.C. 101 dated August 24, U.S.C. 101 in view of the opinion by the * * * modified by the comprehensive 2009 (Interim Instructions) and the Supreme Court in Bilski v. Kappos, 561 ‘any’, Congress plainly contemplated memorandum to the Patent Examining U.S. ___ (2010), which refined the that the patent laws would be given Corps on the Supreme Court Decision in abstract idea exception to subject matter wide scope.’’) (quoting Diamond v. Bilski v. Kappos dated June 28, 2010. that is eligible for patenting. A claim to Chakrabarty, 447 U.S. 303, 308 (1980)). The Interim Bilski Guidance is based on an abstract idea is not a patent-eligible The Court also made clear that business the USPTO’s current understanding of process. methods are not ‘‘categorically outside the law and is believed to be fully This Interim Bilski Guidance provides of § 101’s scope,’’ stating that ‘‘a business consistent with the decision in Bilski, factors to consider in determining method is simply one kind of ‘method’ the binding precedent of the Supreme subject matter eligibility of method that is, at least in some circumstances, Court, the U.S. Court of Appeals for the claims in view of the abstract idea eligible for patenting under § 101.’’ Id. at Federal Circuit (Federal Circuit) and the exception. Although this guidance 10–11. Examiners are reminded that Federal Circuit’s predecessor courts. presents a change in existing § 101 is not the sole tool for determining The USPTO has also posted the Interim examination practice, it is anticipated patentability; where a claim Bilski Guidance on its Internet Web site that subject matter eligibility encompasses an abstract idea, sections (http://www.uspto.gov). determinations will not increase in 102, 103, and 112 will provide additional tools for ensuring that the Request for Comments complexity for the large majority of examiners, who do not routinely claim meets the conditions for The Office has received and encounter claims that implicate the patentability. As the Court made clear in considered the comments regarding the abstract idea exception. Bilski: Interim Instructions submitted in Under the principles of compact The § 101 patent-eligibility inquiry is only response to the Request for Comments prosecution, each claim should be a threshold test. Even if an invention on Interim Examination Instructions for reviewed for compliance with every qualifies as a process, machine, manufacture, or , in order to receive Evaluating Patent Subject Matter statutory requirement for patentability the Patent Act’s protection the claimed Eligibility, 74 FR 47780 (Sept. 11, 2009), in the initial review of the application, invention must also satisfy ‘‘the conditions 1347 Off. Gaz. Pat. Office 110 (Oct. 13, even if one or more claims are found to and requirements of this title.’’ § 101. Those 2009). See also Additional Period for be deficient with respect to the patent- requirements include that the invention be Comments on Interim Examination eligibility requirement of 35 U.S.C. 101. novel, see § 102, nonobvious, see § 103, and Instructions for Evaluating Patent Thus, Office personnel should state all fully and particularly described, see § 112. Subject Matter Eligibility, 74 FR 52184 non-cumulative reasons and bases for Id. at 5. (Oct. 9, 2009), 1348 Off. Gaz. Pat. Office rejecting claims in the first Office Therefore, examiners should avoid 42 (Nov. 3, 2009) (extending the action. focusing on issues of patent-eligibility

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under § 101 to the detriment of Bilski reaffirmed Diehr’s holding that limitations or insignificant postsolution considering an application for ‘‘while an abstract idea, law of nature, or components, and that adding these compliance with the requirements of mathematical formula could not be limitations did not make the claims §§ 102, 103, and 112, and should avoid patented, ‘an application of a law of patent-eligible. See id. Claims 1–9 in treating an application solely on the nature or mathematical formula to a Bilski are attached as examples of claims basis of patent-eligibility under § 101 known structure or process may well be that run afoul of the abstract idea except in the most extreme cases. deserving of patent protection.’ ’’ Id. at exception. III. The Abstract Idea Exception to 14 (quoting Diamond v. Diehr, 450 U.S. The day after deciding Bilski, the Subject Matter Eligibility: There are 175, 187 (1981)) (emphasis in original). Supreme Court denied certiorari in limits on the scope of patent-eligibility. The recitation of some structure, such as Ferguson v. Kappos, U.S. Supreme In particular, the Supreme Court has a machine, or the recitation of some Court No. 09–1501, while granting, identified three specific exceptions to transformative component will in most vacating, and remanding two other § 101’s broad patent-eligibility cases limit the claim to such an Federal Circuit section 101 cases. The principles: Laws of nature, physical application. However, not all such denial of certiorari left intact the phenomena, and abstract ideas. See id. recitations necessarily save the claim: rejection of all of Ferguson’s claims. The Office has been using the so- ‘‘Flook established that limiting an Although the Federal Circuit had called ‘‘machine-or-transformation’’ test abstract idea to one field of use or applied the machine-or-transformation used by the Federal Circuit to evaluate adding token postsolution components test to reject Ferguson’s process claims, whether a method claim qualifies as a did not make the concept patentable.’’ the Supreme Court’s disposition of statutory patent-eligible process. See Id. at 15. Moreover, the fact that the Ferguson makes it likely that the Interim Examination Instructions For steps of a claim might occur in the ‘‘real Ferguson claims also run afoul of the Evaluating Subject Matter Eligibility world’’ does not necessarily save it from abstract idea exception. A representative Under 35 U.S.C. 101 dated August 24, a section 101 rejection. Thus, the Bilski Ferguson claim is: 2009 (‘‘2009 Interim Instructions’’). The claims were said to be drawn to an 1. A method of marketing a product, Supreme Court stated in Bilski that the ‘‘abstract idea’’ despite the fact that they comprising: included steps drawn to initiating machine-or-transformation test is a Developing a shared marketing force, said ‘‘useful and important clue’’ and transactions. The ‘‘abstractness’’ is in the shared marketing force including at least ‘‘investigative tool’’ for determining sense that there are no limitations as to marketing channels, which enable marketing whether some claimed methods are the mechanism for entering into the a number of related products; statutory processes, but it ‘‘is not the transactions. Using said shared marketing force to sole test for deciding whether an Consistent with the foregoing, Bilski market a plurality of different products that invention is a patent-eligible ‘process.’ ’’ holds that the following claim is are made by a plurality of different Slip op. at 8. Its primary objection was abstract: autonomous producing company [sic], so that different autonomous companies, having to the elevation of the machine-or- 1. A method for managing the consumption risk costs of a commodity different ownerships, respectively produce transformation test—which it said related products; considered to be ‘‘atextual’’—as the ‘‘sole sold by a commodity provider at a fixed Obtaining a share of total profits from each test’’ for patent-eligibility. Slip op. at 6– price comprising the steps of: of said plurality of different autonomous 8, 16. To date, no court, presented with (a) Initiating a series of transactions producing companies in return for said a subject matter eligibility issue, has between said commodity provider and using; and ever ruled that a method claim that consumers of said commodity wherein Obtaining an exclusive right to market each lacked a machine or a transformation said consumers purchase said of said plurality of products in return for said was patent-eligible. However, Bilski commodity at a fixed rate based upon using. held open the possibility that some historical averages, said fixed rate The following guidance presents claims that do not meet the machine-or- corresponding to a risk position of said factors that are to be considered when transformation test might nevertheless consumer; evaluating patent-eligibility of method be patent-eligible. (b) Identifying market participants for claims. The factors include inquiries Prior to adoption of the machine-or- said commodity having a counter-risk from the machine-or-transformation test, transformation test, the Office had used position to said consumers; and which remains a useful investigative the ‘‘abstract idea’’ exception in cases (c) Initiating a series of transactions tool, and inquiries gleaned from where a claimed ‘‘method’’ did not between said commodity provider and Supreme Court precedent. While the sufficiently recite a physical said market participants at a second Supreme Court in Bilski did not set forth instantiation. See, e.g., Ex parte Bilski, fixed rate such that said series of market detailed guidance, there are many No. 2002–2257, slip op. at 46–49 participant transactions balances the factors to be considered when (B.P.A.I. Sept. 26, 2006) (informative), risk position of said series of consumer determining whether there is sufficient http://www.uspto.gov/ip/boards/bpai/ transactions. evidence to support a determination decisions/inform/fd022257.pdf. Specifically, the Court explains: that a method claim is directed to an Following Bilski, such an approach The concept of hedging, described in claim abstract idea. The following factors are remains proper. A claim that attempts to 1 and reduced to a mathematical formula in intended to be useful examples and are patent an abstract idea is ineligible claim 4, is an unpatentable abstract idea, just not intended to be exclusive or limiting. subject matter under 35 U.S.C. 101. See like the algorithms at issue in Benson and It is recognized that new factors may be slip op. at 13 (‘‘[A]ll members of the Flook. Allowing petitioners to patent risk developed, particularly for emerging Court agree that the patent application hedging would preempt use of this approach technologies. It is anticipated that the at issue here falls outside of § 101 in all fields, and would effectively grant a factors will be modified and changed to because it claims an abstract idea.’’). The monopoly over an abstract idea. take into account developments in abstract idea exception has deep roots in Slip op. at 15. precedential case law and to the Supreme Court’s jurisprudence. See Bilski also held that the additional, accommodate prosecution issues that id. at 5 (citing Le Roy v. Tatham, 55 U.S. narrowing, limitations in the dependent may arise in implementing this new (14 How.) 156, 174–175 (1853)). claims were mere field of use practice.

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Additional guidance in the form of recited or inherent in a , the method steps. A transformation that expanded explanation and specific following factors are relevant: contributes only nominally or examples will follow in due course. (1) The particularity or generality of insignificantly to the execution of the IV. Evaluating Method Claims for the elements of the machine or claimed method (e.g., in a data gathering Eligibility: Where the claim is written in apparatus; i.e., the degree to which the step or in a field-of-use limitation) the form of a method and is potentially machine in the claim can be specifically would weigh against eligibility. a patentable process, as defined in 35 identified (not any and all machines). C. Whether performance of the U.S.C. 100(b), the claim is patent- Incorporation of a particular machine or claimed method involves an application eligible so long as it is not disqualified apparatus into the claimed method steps of a law of nature, even in the absence as one of the exceptions to § 101’s broad weighs toward eligibility. of a particular machine, apparatus, or patent-eligibility principles; i.e., laws of (2) Whether the machine or apparatus transformation. If such an application nature, physical phenomena, and implements the steps of the method. exists, the claims are less likely to be abstract ideas. Integral use of a machine or apparatus drawn to an abstract idea; if not, they Taking into account the following to achieve performance of the method are more likely to be so drawn. Where factors, the examiner should determine weighs toward eligibility, as compared such an application is present, the whether the claimed invention, viewed to where the machine or apparatus is following factors are relevant: as a whole, is disqualified as being a merely an object on which the method (1) The particularity or generality of claim to an abstract idea. Relevant operates, which weighs against the application. Application of a law of factors—both those in favor of patent- eligibility. nature having broad applicability across eligibility and those against such a (3) Whether its involvement is many fields of endeavor weighs against finding—should be weighed in making extrasolution activity or a field-of-use, eligibility, such as where the claim the determination. Factors that weigh in i.e., the extent to which (or how) the generically recites an effect of the law of favor of patent-eligibility satisfy the machine or apparatus imposes nature or claims every mode of criteria of the machine-or- meaningful limits on the execution of accomplishing that effect, such that the transformation test or provide evidence the claimed method steps. Use of a claim would monopolize a natural force that the abstract idea has been machine or apparatus that contributes or patent a scientific fact. (As an practically applied. Factors that weigh only nominally or insignificantly to the example, claiming ‘‘the use of against patent-eligibility neither satisfy execution of the claimed method (e.g., electromagnetism for transmitting the criteria of the machine-or- in a data gathering step or in a field-of- signals at a distance.’’) transformation test nor provide use limitation) would weigh against (2) Whether the claimed method evidence that the abstract idea has been eligibility. recites an application of a law of nature practically applied. Each case will B. Whether performance of the solely involving subjective present different factors, and it is likely claimed method results in or otherwise determinations; e.g., ways to think about that only some of the factors will be involves a transformation of a particular the law of nature. Application of a law present in each application. It would be article. If such a transformation exists, of nature to a particular way of thinking improper to make a conclusion based on the claims are less likely to be drawn to about, or reacting to, a law of nature one factor while ignoring other factors. an abstract idea; if not, they are more would weigh against eligibility. This additional guidance, which likely to be so drawn. Where a (3) Whether its involvement is builds upon the 2009 Interim transformation occurs, the following extrasolution activity or a field-of-use, Instructions, is a factor-based inquiry. factors are relevant: Although the following approach is a (1) The particularity or generality of i.e., the extent to which (or how) the change, it is anticipated that subject the transformation. A more particular application imposes meaningful limits matter eligibility determinations will transformation would weigh in favor of on the execution of the claimed method not increase in complexity, particularly eligibility. steps. An application of the law of for examiners who do not routinely (2) The degree to which the recited nature that contributes only nominally encounter claims that implicate the article is particular; i.e., can be or insignificantly to the execution of the abstract idea exception. Examiners will specifically identified (not any and all claimed method (e.g., in a data gathering recognize that the machine-or- articles). A transformation applied to a step or in a field-of-use limitation) transformation test set forth in Section generically recited article would weigh would weigh against eligibility. II(B) of the 2009 Interim Instructions, against eligibility. D. Whether a general concept (which although not the sole test for evaluating (3) The nature of the transformation in could also be recognized in such terms the subject matter eligibility of a method terms of the type or extent of change in as a principle, theory, plan or scheme) claim, is still pertinent in making state or thing, for instance by having a is involved in executing the steps of the determinations pursuant to the factors different function or use, which would method. The presence of such a general listed below. Examiners are referred to weigh toward eligibility, compared to concept can be a clue that the claim is the summary sheet of factors provided merely having a different location, drawn to an abstract idea. Where a at the end of this Interim Bilski which would weigh against eligibility. general concept is present, the following Guidance which may be useful in (4) The nature of the article factors are relevant: determining subject matter eligibility of transformed, i.e., whether it is an object (1) The extent to which use of the a method claim. or substance, weighing toward concept, as expressed in the method, eligibility, compared to a concept such would preempt its use in other fields; Factors To Be Considered in an Abstract as a contractual obligation or mental i.e., that the claim would effectively Idea Determination of a Method Claim judgment, which would weigh against grant a monopoly over the concept. A. Whether the method involves or is eligibility. (2) The extent to which the claim is executed by a particular machine or (5) Whether its involvement is so abstract and sweeping as to cover apparatus. If so, the claims are less extrasolution activity or a field-of-use, both known and unknown uses of the likely to be drawn to an abstract idea; i.e., the extent to which (or how) the concept, and be performed through any if not, they are more likely to be so transformation imposes meaningful existing or future-devised machinery, or drawn. Where a machine or apparatus is limits on the execution of the claimed even without any apparatus.

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(3) The extent to which the claim including utility and double patenting required under 5 U.S.C. 553(b) or any would effectively cover all possible (§ 101); novelty (§ 102); non-obviousness other law. See Cooper Techs. Co. v. solutions to a particular problem; i.e., (§ 103); and definiteness and adequate Dudas, 536 F.3d 1330, 1336–37, 87 that the claim is a statement of the description, enablement, and best mode U.S.P.Q.2d 1705, 1710 (Fed. Cir. 2008) problem versus a description of a (§ 112). Section 101 is merely a coarse (stating that 5 U.S.C. 553, and thus 35 particular solution to the problem. filter and thus a determination of U.S.C. 2(b)(2)(B), does not require notice (4) Whether the concept is eligibility under § 101 is only a and comment rule making for disembodied or whether it is threshold question for patentability. ‘‘‘interpretative rules, general statements instantiated; i.e., implemented, in some Sections 102, 103, and 112 are typically of policy, or rules of agency tangible way. Note, however, that the primary tools for evaluating organization, procedure, or practice.’’’ limiting an abstract idea to one field of patentability unless the claim is truly (quoting 5 U.S.C. 553(b)(A))). Persons use or adding token postsolution abstract, see, e.g., Bilski, slip op. at 12 submitting written comments should components does not make the concept (‘‘[S]ome business method patents raise note that the USPTO may not provide a patentable. A concept that is well- special problems in terms of vagueness ‘‘comment and response’’ analysis of instantiated weighs in favor of and suspect validity.’’). such comments as notice and an eligibility. If the factors indicate that the method opportunity for public comment are not (5) The mechanism(s) by which the claim is attempting to cover an abstract required under 5 U.S.C. 553(b) or any steps are implemented; e.g., whether the idea, the examiner will reject the claim other law. under § 101, providing clear rationale performance of the process is observable Dated: July 4, 2010. and verifiable rather than subjective or supporting the determination that an David J. Kappos, imperceptible. Steps that are observable abstract idea has been claimed, such and verifiable weigh in favor of that the examiner establishes a prima Under Secretary of Commerce for Intellectual facie case of patent-ineligibility. The Property and Director of the United States eligibility. Patent and Trademark Office. (6) Examples of general concepts conclusion made by the examiner must include, but are not limited to: be based on the evidence as a whole. In Bilski Claims • Basic economic practices or making a rejection or if presenting 1. A method for managing the consumption theories (e.g., hedging, insurance, reasons for allowance when appropriate, risk costs of a commodity sold by a financial transactions, marketing); the examiner should specifically point commodity provider at a fixed price • Basic legal theories (e.g., contracts, out the factors that are relied upon in comprising the steps of: dispute resolution, rules of law); making the determination. If a claim is (a) Initiating a series of transactions • Mathematical concepts (e.g., rejected under § 101 on the basis that it between said commodity provider and consumers of said commodity wherein said algorithms, spatial relationships, is drawn to an abstract idea, the consumers purchase said commodity at a geometry); applicant then has the opportunity to fixed rate based upon historical averages, • Mental activity (e.g., forming a explain why the claimed method is not said fixed rate corresponding to a risk judgment, observation, evaluation, or drawn to an abstract idea. Specifically position of said consumers; opinion); identifying the factors used in the (b) Identifying market participants for said • Interpersonal interactions or analysis will allow the applicant to commodity having a counter-risk position to relationships (e.g., conversing, dating); make specific arguments in response to said consumers; and • Teaching concepts (e.g., the rejection if the applicant believes (c) Initiating a series of transactions between said commodity provider and said memorization, repetition); that the conclusion that the claim is • market participants at a second fixed rate Human behavior (e.g., exercising, directed to an abstract idea is in error. such that said series of market participant wearing clothing, following rules or The Interim Bilski Guidance is for transactions balances the risk position of said instructions); examination guidance in light of the series of consumer transactions. • Instructing ‘‘how business should recent decision in Bilski. This guidance 2. The method of claim 1 wherein said be conducted,’’ Bilski, slip op. at 12. does not constitute substantive rule commodity is energy and said market V. Making the Determination of making and hence does not have the participants are transmission distributors. Eligibility: Each of the factors relevant to force and effect of law. Rejections will 3. The method of claim 2 wherein said the particular patent application should continue to be based upon the consumption risk is a weather-related price be weighed to determine whether the risk. substantive law, and it is these 4. The method of claim 3 wherein the fixed method is claiming an abstract idea by rejections that are appealable. price for the consumer transaction is covering a general concept, or Consequently, any perceived failure by determined by the relationship: combination of concepts, or whether the Office personnel to follow this guidance Fixed Bill Price = Fi + [(Ci + Ti+ LDi) × method is limited to a particular is neither appealable nor petitionable. (a + +E(Wi)] practical application of the concept. The The Interim Bilski Guidance merely wherein, presence or absence of a single factor updates USPTO examination practice F = fixed costs in period i; will not be determinative as the relevant for consistency with the USPTO’s i Ci = variable costs in period i; factors need to be considered and current understanding of the case law Ti = variable long distance transportation weighed to make a proper determination regarding patent subject matter costs in period i; as to whether the claim as a whole is eligibility under 35 U.S.C. 101 in light LDi = variable local delivery costs in drawn to an abstract idea such that the of Bilski. Therefore, the Interim Bilski period i; claim would effectively grant a Guidance relates only to interpretative E(Wi) = estimated location-specific weather monopoly over an abstract idea and be rules, general statements of policy, or indicator in period i; and a and b are constants. ineligible for patent protection. rules of agency organization, procedure, If the factors indicate that the method or practice. The USPTO is providing 5. The method of claim 4 wherein said claim is not merely covering an abstract this opportunity for public comment location-specific weather indicator is at least one of heating degree days and cooling idea, the claim is eligible for patent because the USPTO desires the benefit degree days. protection under § 101 and must be of public comment on the Interim Bilski 6. The method of claim 4 wherein said further evaluated for patentability under Guidance; however, notice and an energy provider seeks a swap receipt to cover all of the statutory requirements, opportunity for public comment are not the marginal weather-driven cost.

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7. The method of claim 4 wherein the the claim. For assistance in applying these Æ The general concept is disembodied. energy price is determined by the steps of: factors, please consult the accompanying Æ The mechanism(s) by which the steps (a) Evaluating the usage and all costs for a ‘‘Interim Guidance’’ memo and TC are implemented is subjective or prospective transaction; management. imperceptible. (b) Performing a Monte Carlo simulation Factors Weighing Toward Eligibility Notes across all transactions at all locations for a predetermined plurality of years of weather • Recitation of a machine or (1) Examples of general concepts include, patterns and establishing the payoffs from transformation (either express or inherent). but are not limited, to: each transaction under each historical Æ Machine or transformation is particular. • Basic economic practices or theories weather pattern; Æ Machine or transformation meaningfully (e.g., hedging, insurance, financial (c) Assuming that the summed payoffs are limits the execution of the steps. transactions, marketing); Æ normally distributed; Machine implements the claimed steps. • Basic legal theories (e.g., contracts, Æ (d) Performing one-tail tests to determine The article being transformed is dispute resolution, rules of law); the marginal likelihood of losing money on particular. • Mathematical concepts (e.g., algorithms, Æ the deal and the marginal likelihood of The article undergoes a change in state spatial relationships, geometry); retaining at least the design margin included or thing (e.g., objectively different function or • Mental activity (e.g., forming a judgment, use). observation, evaluation, or opinion); in the initial evaluation of the fixed bill Æ price; and The article being transformed is an • Interpersonal interactions or object or substance. relationships (e.g., conversing, dating); (e) Adjusting the margin of the fixed bill • price if the transaction as initially priced The claim is directed toward applying a • Teaching concepts (e.g., memorization, law of nature. repetition); leads to a reduced expected margin or Æ Law of nature is practically applied. • Human behavior (e.g., exercising, increases the likelihood of a loss until the Æ expected portfolio margin and the likelihood The application of the law of nature wearing clothing, following rules or of portfolio loss is acceptable. meaningfully limits the execution of the instructions); 8. The method of claim 4 wherein a cap on steps. • Instructing ‘‘how business should be • The claim is more than a mere statement the weather-influenced pricing is established conducted.’’ of a concept. by the steps of: (2) For a detailed explanation of the terms Æ The claim describes a particular solution (a) Evaluating the usage equation and all machine, transformation, article, particular, to a problem to be solved. costs for a prospective transaction; extrasolution activity, and field-of-use, please Æ The claim implements a concept in some (b) Performing a Monte Carlo simulation refer to the Interim Patent Subject Matter tangible way. across all transactions at all locations for a Eligibility Examination Instructions of Æ The performance of the steps is predetermined plurality of years of weather August 24, 2009. observable and verifiable. patterns and establishing the payoffs from (3) When making a subject matter each transaction under each historical Factors Weighing Against Eligibility eligibility determination, the relevant factors should be weighed with respect to the claim weather pattern assuming that the price in • No recitation of a machine or as a whole to evaluate whether the claim is the transaction being priced floats down transformation (either express or inherent). patent-eligible or whether the abstract idea when the weather is below normal; • Insufficient recitation of a machine or (c) Assuming that the summed payoffs are transformation. exception renders the claim ineligible. When normally distributed; Æ Involvement of machine, or it is determined that the claim is patent- (d) Performing one-tail tests to determine transformation, with the steps is merely eligible, the analysis may be concluded. In the marginal likelihood of losing money on nominally, insignificantly, or tangentially those instances where patent-eligibility the transaction and the marginal likelihood related to the performance of the steps, e.g., cannot be easily identified, every relevant of retaining at least the design margin data gathering, or merely recites a field in factor should be carefully weighed before included in the initial evaluation of the fixed which the method is intended to be applied. making a conclusion. Not every factor will be price bill; Æ Machine is generically recited such that relevant to every claim. While no factor is (e) Continuing to reprice the margin in the it covers any machine capable of performing conclusive by itself, the weight accorded transaction until the expected portfolio the claimed step(s). each factor will vary based upon the facts of margin and likelihood of portfolio loss is Æ Machine is merely an object on which the application. These factors are not acceptable; and the method operates. intended to be exclusive or exhaustive as (f) Establishing the margin as a call option Æ Transformation involves only a change there may be more pertinent factors on weather at a predetermined location. in position or location of article. depending on the particular technology of 9. The method of claim 1 wherein said Æ ‘‘Article’’ is merely a general concept (see the claim. commodity provider seeks a swap receipt to notes below). (4) Sample Form Paragraphs: cover the price risk of the consumer • The claim is not directed to an a. Based upon consideration of all of the transaction. application of a law of nature. relevant factors with respect to the claim as Æ The claim would monopolize a natural a whole, claim(s) [1] held to claim an abstract 101 Method Eligibility Quick Reference force or patent a scientific fact; e.g., by idea, and is therefore rejected as ineligible Sheet claiming every mode of producing an effect subject matter under 35 U.S.C. 101. The The factors below should be considered of that law of nature. rationale for this finding is explained below: when analyzing the claim as a whole to Æ Law of nature is applied in a merely [2] 1. In bracket 2, identify the decisive evaluate whether a method claim is directed subjective determination. factors weighing against patent-eligibility, to an abstract idea. However, not every factor Æ Law of nature is merely nominally, and explain the manner in which these will be relevant to every claim and, as such, insignificantly, or tangentially related to the factors support a conclusion of ineligibility. need not be considered in every analysis. performance of the steps. The explanation needs to be sufficient to When it is determined that the claim is • The claim is a mere statement of a establish a prima facie case of ineligibility patent-eligible, the analysis may be general concept (see notes below for under 35 U.S.C. 101. concluded. In those instances where patent- examples). b. Dependent claim(s) [1] when analyzed as eligibility cannot easily be identified, every Æ Use of the concept, as expressed in the a whole are held to be ineligible subject relevant factor should be carefully weighed method, would effectively grant a monopoly matter and are rejected under 35 U.S.C. 101 before making a conclusion. Additionally, no over the concept. because the additional recited limitation(s) factor is conclusive by itself, and the weight Æ Both known and unknown uses of the fail(s) to establish that the claim is not accorded each factor will vary based upon concept are covered, and can be performed directed to an abstract idea, as detailed the facts of the application. These factors are through any existing or future-devised below: [2] 1. In bracket 2, provide an not intended to be exclusive or exhaustive as machinery, or even without any apparatus. explanation as to why the claim is directed there may be more pertinent factors Æ The claim only states a problem to be to an abstract idea; for instance, that the depending on the particular technology of solved. additional limitations are no more than a

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field of use or merely involve insignificant Atlantic bluefin tuna, shark, and ensure that the Council’s management extrasolution activity; e.g., data gathering. swordfish fisheries, as well as options plans are minimizing adverse impacts of The explanation needs to be sufficient to for vessel monitoring systems and various Council-managed fisheries on establish a prima facie case of ineligibility recreational reporting. EFH to the extent practicable, and that under 35 U.S.C. 101. EFH-related management measures are Special Accommodations [FR Doc. 2010–18424 Filed 7–26–10; 8:45 am] integrated and optimized across all BILLING CODE 3510–16–P This meeting is physically accessible FMPs. Recommendations from the to people with disabilities. Requests for Advisory Panel will be considered by sign language interpretation or other DEPARTMENT OF COMMERCE the Habitat Committee at their meeting auxiliary aids should be directed to on August 26, 2010. As necessary, National Oceanic and Atmospheric Brian Parker at (301) 713 2347 at least representatives from the Habitat Plan Administration 7 days prior to the meeting. Development Team (PDT) will present Dated: July 22, 2010. recent PDT analyses and RIN 0648–XX81 Carrie Selberg, recommendations to inform the Advisory Panel’s discussion. If time Atlantic Highly Migratory Species; Acting Director, Office of Sustainable permits, the panel may discuss other Meeting of the Atlantic Highly Fisheries, National Marine Fisheries Service. issues. Migratory Species Advisory Panel [FR Doc. 2010–18393 Filed 7–26–10; 8:45 am] Although non-emergency issues not BILLING CODE 3510–22–S AGENCY: National Marine Fisheries contained in this agenda may come Service (NMFS), National Oceanic and before this group for discussion, those Atmospheric Administration (NOAA), DEPARTMENT OF COMMERCE issues may not be the subject of formal Commerce. action during this meeting. Action will ACTION: Notice of public meeting. National Oceanic and Atmospheric be restricted to those issues specifically Administration listed in this notice and any issues SUMMARY: NMFS will hold a 3–day arising after publication of this notice RIN 0648–XX80 Atlantic Highly Migratory Species that require emergency action under (HMS) Advisory Panel (AP) meeting in New England Fishery Management section 305(c) of the Magnuson-Stevens September 2010. The intent of the Council; Public Meeting Act, provided the public has been meeting is to consider options for the notified of the Council’s intent to take conservation and management of AGENCY: National Marine Fisheries final action to address the emergency. Atlantic HMS. The meeting is open to Service (NMFS), National Oceanic and the public. Atmospheric Administration (NOAA), Special Accommodations DATES: The AP meeting will be held on Commerce This meeting is physically accessible September 21, 2010 through September ACTION: Notice; public meeting. to people with disabilities. Requests for 23, 2010. sign language interpretation or other SUMMARY: ADDRESSES: The meeting will be held in The New England Fishery auxiliary aids should be directed to Paul Silver Spring, MD 20910. Management Council (Council) is J. Howard, Executive Director, at (978) scheduling a public meeting of its FOR FURTHER INFORMATION CONTACT: 465–0492, at least 5 days prior to the Habitat/MPA/Ecosystem Advisory Panel Brian Parker or Margo Schulze-Haugen meeting date. in August, 2010 to consider actions at 301-713-2347. affecting New England fisheries in the Authority: 16 U.S.C. 1801 et seq. SUPPLEMENTARY INFORMATION: The exclusive economic zone (EEZ). Dated: July 22, 2010. Magnuson Stevens Fishery Conservation Recommendations from this group will Tracey L. Thompson, and Management Act, 16 U.S.C. 1801 et be brought to the full Council for formal Acting Director, Office of Sustainable seq., as amended by the Sustainable consideration and action, if appropriate. Fisheries, National Marine Fisheries Service. Fisheries Act, Public Law 104 297, DATES: This meeting will be held on [FR Doc. 2010–18328 Filed 7–26–10; 8:45 am] provided for the establishment of an AP Thursday, August 12, 2010 at 9:30 a.m. BILLING CODE 3510–22–S to assist in the collection and evaluation of information relevant to the ADDRESSES: This meeting will be held at the Four Points Sheraton, 407 Squire development of any Fishery DEPARTMENT OF COMMERCE Management Plan (FMP) or FMP Road, Revere, MA 02151; telephone: amendment for HMS. NMFS consults (781) 284–7200; fax: (781) 289–3176. National Oceanic and Atmospheric Council address: New England with and considers the comments and Administration views of AP members when preparing Fishery Management Council, 50 Water and implementing FMPs or FMP Street, Mill 2, Newburyport, MA 01950. RIN 0648–XX79 amendments for Atlantic tunas, FOR FURTHER INFORMATION CONTACT: Paul J. Howard, Executive Director, New New England Fishery Management swordfish, billfish, and sharks. Council; Public Meeting The AP has previously consulted with England Fishery Management Council; NMFS on: Amendment 1 to the Billfish telephone: (978) 465–0492. AGENCY: National Marine Fisheries FMP (April 1999), the HMS FMP (April SUPPLEMENTARY INFORMATION: The Service (NMFS), National Oceanic and 1999), Amendment 1 to the HMS FMP Habitat Advisory Panel will meet to Atmospheric Administration (NOAA), (December 2003), the Consolidated HMS discuss management options to Commerce. FMP (October 2006), and Amendments minimize the adverse effects of fishing ACTION: Notice; public meeting. 1, 2, and 3 to the Consolidated HMS on Essential Fish Habitat (EFH) across FMP (April and October 2008, February all Council FMPs. These management SUMMARY: The New England Fishery and September 2009, and May 2010). At options are being developed as part of Management Council (Council) is the September 2010 AP meeting, NMFS Phase 2 of Essential Fish Habitat scheduling a public meeting of its Red plans to discuss the current Omnibus Amendment 2. Broadly Crab Committee in August, 2010 to management issues related to the speaking, the purpose of Phase 2 is to consider actions affecting New England

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