August 25, 2022

Some Patent Eligibility Relief May Finally Be on the Way

IP Matters and Insights

Some Patent Eligibility Relief May Finally Be on the Way

by Michael C. Antone, U.S. Registered Patent Attorney and NB Law Of Counsel

On August 3, 2022, Senator Tillis (NC) announced his introduction of the Patent Eligibility Restoration Act of 2022. The legislation is an attempt to stabilize the US patent eligibility law, which has become increasing unstable over the years due to myriad US Supreme Court and lower federal court and regulatory decisions.

US patent eligibility requirements are set forth in 35 USC § 101, which reads “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”

While this law is seemingly straightforward and has not changed in 70 years, the courts have read into the law implicit exceptions excluding claims directed to laws of nature, natural phenomena, and abstract ideas from patent eligibility. Over the years, the “judicial exceptions” have produced an avalanche of patent eligibility disputes resulting in intellectual property destruction and uncertainty.

Senator Tillis’ legislation is intended reduce the uncertainty and unpredictability of judicial and regulatory decisions by enumerating specific exclusions to patent eligibility in more detail than the current judicial exceptions. The hope is that the specific enumeration will add more certainty and predictability to eligibility determinations by shifting the argument from whether a claim is directed to laws of nature, natural phenomena, and abstract ideas to whether the claim is directed to the terms in the specifically enumerated exceptions in the legislation.

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