Section 101 Examples
Example 27: System Software ‐ BIOS

This is an example provided by the U.S. Patent and Trademark Office for analyzing Section 101 patent subject matter eligibility issues. This example is taken from Appendix 2 of the July 2015 Update on Subject Matter Eligibility.

This example should be viewed in light of the introduction that was provided with it.

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Example 27: System Software ‐ BIOS

This example demonstrates the use of the streamlined analysis. The claim below is taken from U.S. Pat. 5,230,052 and was suggested as an example by comments received in response to the June 2014 Preliminary Examination Instructions. As a streamlined analysis would not result in a written rejection, the discussion sets forth exemplary reasoning an examiner might use in drawing a conclusion of eligibility.


BIOS is an acronym that stands for Basic Input/Output System. When a computer is powered on, BIOS code runs to initialize and test the hardware components. BIOS also acts as an insulation layer between the hardware and software of a computer, by providing an interface between the application program/operating system and the hardware devices. At the time of the invention, conventional computers stored BIOS code in non‐volatile read only memory (ROM) on the computer’s motherboard. However, as computers have grown more sophisticated, two disadvantages have arisen. First, the size of the BIOS code has increased such that it exceeds the memory space in ROM. Second, storing BIOS code in ROM also makes it difficult to modify or rewrite the code as new input/output devices are added.

In order to overcome these disadvantages, the inventors utilize a local area network (LAN) to store the BIOS code remotely from the computer. Upon startup, a computer connected to the LAN loads code to initialize and test only those system components and functions necessary to load the BIOS from a remote computer. Subsequently, the computer requests a remote memory location, which is also connected to the LAN, for the BIOS code. In response to the request, the remote system builds the appropriate BIOS for that computer including a master boot record and transmits the BIOS to the local computer system. The local computer system stores the received BIOS code in random access memory (RAM), and uses the master boot record to load and execute the BIOS.


15. A method for loading BIOS into a local computer system which has a system processor and volatile memory and non‐volatile memory, the method comprising the steps of:
(a) responding to powering up of the local computer system by requesting from a memory location remote from the local computer system the transfer to and storage in the volatile memory of the local computer system of BIOS configured for effective use of the local computer system,
(b) transferring and storing such BIOS, and
(c) transferring control of the local computer system to such BIOS.


Claim 15: Eligible.

The claim recites a series of steps for loading BIOS on a local computer system from a remote storage location. Thus, the claim is directed to a process, which is one of the statutory categories of invention (Step 1: YES).

Next, the claim must be evaluated to determine if the claim is directed to a law of nature, natural phenomenon or abstract idea. But when the claim is reviewed, it is immediately evident that even if the claim did recite a judicial exception, the claim is not attempting to tie up any such exception so that others cannot practice it. In particular, the claim’s description of initializing a local computer system using BIOS code stored at a remote memory location, by triggering the processor to transfer BIOS code between two memory locations upon a powering up of the computer and transferring control of the processor operations to that BIOS code, makes it clear that the claim as a whole would clearly amount to significantly more than any potential recited exception. Thus, eligibility of the claim is self‐evident in the streamlined analysis, without needing to perform the full eligibility analysis (e.g., Steps 2A and 2B). The claim is patent eligible.

It is important to point out as well that there is no apparent exception recited in the claim, which alone would be sufficient for eligibility. While computers operate on mathematical theory, that underlying operation should not trigger an eligibility analysis – computers and computer operations are not automatically subjected to an eligibility analysis. The cases in which courts find mathematical relationships to represent abstract ideas (thus raising eligibility issues) are those in which the mathematical relationship is recited in the claim as part of the invention, such as a method of performing a mathematical calculation to obtain a result. Courts have found computers and computer implemented processes to be ineligible when generic computer functions are merely used to implement an abstract idea, such as an idea that could be done by human analog (i.e., by hand or by merely thinking).

If the examiner believes that the record would benefit from clarification, remarks could be added to an Office action or reasons for allowance, indicating that the claim is not directed to any judicial exception.