Non-functional descriptive material is a throwback to an earlier time. Historically, the non-functional descriptive matter doctrine was used by examiners to argue that limitations related to the content of information should be given little to no patentable weight. However, current subject matter eligibility jurisprudence provides tools to simply treat content-based inventions as ineligible (e.g., Electric Power Group, LLC v. Alstom S.A.), and so it is not clear that non-functional descriptive material rejections should continue to play a role in examination. Nevertheless, the doctrine still exists, and so this article presents three examples illustrating how you can respond to non-functional descriptive material rejections when they arise in your practice.
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