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ANNEX III Improper Tests For Subject Matter Eligibility
The Federal Circuit further stated “after Diehr and Alappat, the mere fact that a claimed invention involves inputting

numbers, calculating numbers, outputting numbers and storing numbers, in and of itself, would not render it

nonstatutory . . . .” State Street, 149 F.3d at 1374, 47 USPQ2d at 1602 (citing In re Alappat, 33 F.3d at 1544, 31

USPQ2d at 1557). The Federal Circuit in an en banc decision pointed out that “the ultimate issue always has been

whether the claim as a whole is drawn to statutory subject matter.” Alappat, 33 F.3d at 1543 n. 21, 31 USPQ2d at 1557

n. 21. In AT&T, the Federal Circuit focused the inquiry on whether the claim as a whole is drawn to statutory subject

matter, deemed the “ultimate issue” by Alappat, rather than on the Freeman-Walter-Abele test which dissects the

claim by removing the labeled nonstatutory subject matter and then labels the remaining portion of the claim as either

data gathering steps or insignificant post solution activity. AT&T, 172 F.3d at 1359, 50 USPQ2d at 1453. The Federal

Circuit concluded that “[w]hatever may be left of the earlier [Freeman-Walter-Abele] test, if anything, this type of

physical limitations analysis seems of little value.” Id. Therefore, USPTO personnel should no longer rely on the

Freeman-Walter-Abele test to determine whether a claimed invention is directed to statutory subject matter. c. (i) The

Mental Step Test If a claimed process is performed by a machine, it is immaterial whether some or all the steps could be

carried out by the human mind. As stated in Musgrave, 431
F.2d at 893, 167 USPQ at 289-90: “[w]e cannot agree with the board that these claims (all the steps of which can be

carried out by the disclosed apparatus) are directed to non-statutory processes merely because some or all [emphasis

added] the steps therein can also be carried out in or with the aid of the human mind or because it may be necessary for

one performing the processes to think.” Therefore, USPTO personnel should no longer rely on the mental step test to

determine whether a claimed invention is directed to statutory subject matter. If all the steps of a claimed process can be

carried out in the human mind, examiners must determine whether the claimed process produces a useful, tangible, and

concrete result, i.e., apply the practical application test set forth in State Street.