Non-Transitory Media

By Lia Kopin-Green
/
September 19, 2022

What is Non-Transitory Media?

Non-transitory refers to computer-readable media that stores data only for short periods of time and/or only in the presence of power, such as a memory device or Random Access Memory (RAM). The United States Patent and Trademark Office (USPTO) first used the term “non-transitory” in August 2009 as part of their training material regarding patentability. The USPTO stated that transitory matter is non-patentable. To overcome this limitation, the USPTO enacted a policy in January 2010 stating that patent applications should direct software claims to non-transitory computer-readable media.

Key Takeaways

  • Non-transitory media is computer-readable media that stores data for a short period of time and/or in the presence of another power such as a memory device or Random Access Memory (RAM).
  • Computer media claims for patents that include transitory media are often rejected by the USPTO.
  • As transitory media is not patentable, applicants are advised to submit non-transitory claim limitations.

The History of Non-Transitory Media

There is a great deal of controversy regarding what is patentable and what is not when it comes to intellectual property in the technology and computer software field. In the 1995 case of Beauregard, the court ruled that certain types of computer-readable media are patentable under certain circumstances. Simply put, as long as the material is stored in a tangible form, such as on a compact disk, it can be patented.

The Federal Circuit made another landmark decision regarding software patent claims in the case of In re Neuijten that took place in 2007. In re Neuijten contradicted Beauregard by stating that transitory propagating signals are not patent-eligible. In other words, wireless transmissions, also known as “radio waves,” were deemed unpatented, even if they were uniquely created for a specific purpose.

On January 26, 2010, David Kappos, the director of the USPTO, offered a strategy to avoid patent rejection based on the In re Neuijten ruling. The official guidance stated that as long as you use language in your claims mentioning “non-transitory storage media” or “non-transitive,” it is possible to patent some forms of computer-readable media.

Avoiding Transitory Rejections on Your Patent Applications

If you want to prevent your patent application from being rejected on the basis of transitory signals, using the correct legal language is essential. As stated above, you can avoid these rejections by stating that your material is non-transitory in the claims section of your patent application. 

If you fail to include this language in your patent claims, the USPTO Examiner may reject the claims. In these cases, it is important to provide a detailed response to the rejection and explain your reasoning for omitting non-transitory language.

Bottom Line

It can take a lot of time and effort to develop complex computer software. Someone stealing your ideas and profiting from them is the last thing any software developer wants. Unfortunately, patentability of computer-readable media is quite complicated in the United States. To make sure your invention receives the protection it deserves, reach out to an experienced intellectual property attorney today. Taking on such challenging matters requires the assistance of a professional legal team.

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