Section 101 Examples
Example 9 (1): Gunpowder and Fireworks: Product Claims That Are Not Directed To An Exception

This is an example provided by the U.S. Patent and Trademark Office for analyzing Section 101 patent subject matter eligibility issues. The example is one of the "Nature Based Product Examples" provided by the USPTO on December 16, 2014, and this example should be viewed in light of the introduction that was provided with it. The original PDF document is found here. The numbering of these examples is taken from Appendix 2 of the July 2015 Update on Subject Matter Eligibility.

The index for all of the examples provided by the Patent and Trademark Office is found on BitLaw's Section 101 Index.

Example 9 (1): Gunpowder and Fireworks: Product Claims That Are Not Directed To An Exception

This example illustrates the application of the markedly different characteristics analysis to a nature- based product produced by combining multiple components (claim 1), and also provides a sample of a claimed product that when viewed as a whole is not nature-based, and thus is not subjected to the markedly different characteristics analysis in order to determine that the claim is not directed to an exception (claim 2).

Claims:

1. Gunpowder comprising: an intimate finely-ground mixture of 75% potassium nitrate, 15% charcoal and 10% sulfur.
2. A fountain-style firework comprising:
(a) a sparking composition,
(b) calcium chloride,
(c) the gunpowder of claim 1,
(d) a cardboard body having a first compartment containing the sparking composition and the calcium chloride and a second compartment containing the gunpowder, and (e) a plastic ignition fuse having one end extending into the second compartment and the other end extending out of the cardboard body.

Analysis of Claims:

These claims are analyzed for eligibility in accordance with their broadest reasonable interpretation. Both claims are directed to a statutory category, e.g., a composition of matter or manufacture (Step 1: YES).

Claim 1: Eligible.

Because the claim is a nature-based product, i.e., a combination of three naturally occurring substances (potassium nitrate, charcoal and sulfur), the nature-based product (the combination) is analyzed to determine whether it has markedly different characteristics from any naturally occurring counterpart(s) in their natural state. In this case, there is no naturally occurring counterpart to the claimed combination (the components do not occur together in nature), so the combination is compared to the individual components as they occur in nature. None of the three claimed substances are explosive in nature. When the substances are finely-ground and intimately mixed in the claimed ratio, however, the claimed combination is explosive upon ignition. This explosive property of the claimed combination is markedly different from the non-explosive properties of the substances by themselves in nature. Accordingly, the claimed combination has markedly different characteristics, and is not a “product of nature” exception. Thus, the claim is not directed to an exception (Step 2A: NO), and qualifies as eligible subject matter.

Claim 2: Eligible.

Although the claim recites two nature-based products (calcium chloride and gunpowder), analysis of the claim as a whole indicates that the claim is focused on the assembly of components that together form the firework, and not the nature-based products. Thus, it is not necessary to apply the markedly different characteristics analysis in order to conclude that the claim is not directed to an exception (Step 2A: NO). The claim qualifies as eligible subject matter.