The Patent Eligibility Restoration Act (PERA) and the Promoting and the Respecting Economically Vital American Innovation Leadership Act (PREVAIL) Act have continued to face attacks from anti-patent groups. One recent example is an article published by the Electronic Frontier Foundation (EFF), which argues that PERA and PREVAIL would “make the patent system even worse” and “foster more patent abuse.” However, the article’s explanations of the bills’ alleged flaws reveal a fundamental misunderstanding of the reforms they would make — and its underlying assumption that the patent system is plagued with low-quality patents is not grounded in evidence.
In reality, PERA and PREVAIL would make simple yet important improvements to the patent system to promote innovation and provide consumers access to more groundbreaking technologies:
| Claim: PERA would make patentable any ‘idea’ that relies on the use of technology, even if it does not constitute an improvement to the technology. |
| In reality: The terms “patentable” and “patent eligible” should not be conflated. Eligibility is a general test that identifies broad categories of inventions — processes, machines, articles of manufacture, and compositions of matter — as potentially able to receive a patent. To actually receive a patent — to be “patentable” — an invention must also meet several more granular and refined requirements, such as being novel and non-obvious. PERA would restore patent eligibility for some types of inventions, but it does not dictate what can be patented, nor would it make any idea patentable. Under PERA, inventions must still meet the other statutory requirements. Moreover, ideas would not even be eligible for patenting under PERA — the bill’s text states that “mental process[es] performed in the mind of a human being” are outside the bounds of eligibility. |
| Claim: Passing PREVAIL “would sell out the public interest to a narrow group of patent holders.” |
| In reality: Far from being a reform that would enrich a few patent-holding companies at the public’s expense, PREVAIL would ensure an equal playing field for the many small and independent inventors competing against large incumbents — and would benefit the general public by fostering innovation. Currently, the rules of the Patent Trial and Appeal Board (PTAB), which allow repeated and duplicative patent invalidation challenges, advantage large, deep-pocketed companies, which can overwhelm their smaller competitors with costly litigation. Consequently, the board has become a favored venue among corporations seeking to stifle competition: The top 20 users of the PTAB from 2012-2023 are overwhelmingly members of Big Tech. PREVAIL would make common-sense reforms, such as banning repeated petitions, in order to eliminate this imbalance. By empowering small companies and inventors to stand their ground against abusive litigation, it would strengthen trust in the patent system and foster “little tech” innovation that benefits consumers. |
| Claim: The U.S. patent system needs to do better at “eliminating patents that never should have been granted in the first place.” |
| In reality: The common narrative that the United States has a problem with low-quality patents was thoroughly debunked by a recent study from the nonpartisan Sunwater Institute. The study used three separate methods to determine the rate at which the USPTO erroneously grants patents that do not meet statutory requirements. It found that the overall quality of patents was very high and that the USPTO did better at weeding out low-quality patents than its counterparts in Japan, Korea, and the European Union. By contrast, the USPTO’s rejections of valid patents were a more significant problem, according to the study: Nearly one in every five denied claims should have instead been granted. The denial of patent protection to these legitimate inventions stunts U.S. innovation and threatens both our economy and national security. Implementing new restrictions on patenting in order to block “bad patents” would not only be unnecessary, but would likely exacerbate the more common problem of wrongful patent denials. |