The Patent Eligibility Restoration Act (PERA), sponsored by Sens. Thom Tillis (R-NC) and Chris Coons (D-DE), is bipartisan legislation that would make critical reforms to the U.S. patent system.
In recent years, a series of Supreme Court decisions have created major uncertainty around U.S. patent eligibility for cutting-edge inventions in a number of crucial fields, including diagnostic testing, personalized medicine, software, and artificial intelligence. Meanwhile, other countries — like China, Japan, and many European nations — have maintained patent eligibility for innovations in these highly competitive sectors, putting U.S. industries at a severe disadvantage.
The “exceptions” to patent eligibility created by the Supreme Court were not drafted or endorsed by Congress. They also represent a misapplication of the statutes that govern the U.S. patent system. In particular, 35 U.S.C. § 101 — the section governing eligibility — is meant to delineate broad categories of inventions that may be considered for patent protection, while Sections 102, 103, and 112 set forth specific requirements that an eligible invention must meet in order to receive a patent, such as being new and nonobvious. The Court has conflated the distinct functions of the different sections of the Patent Act.
By amending Section 101 and related sections, PERA would restore patent eligibility to categories of inventions that the Supreme Court’s decisions have rendered ineligible while clarifying which kinds of inventions are ineligible for patents.
Below are some misconceptions about PERA related to the software and technology industries that have circulated in recent months.