First Draft from Congress on Section 101 Reform

May 23, 2019
Post by Kirk M. Hartung

 On Wednesday May 22, 2019, the Senate and House Subcommittees on Intellectual Property released for comment their initial draft of legislative reform for Section 101 of the patent statutes.

The biggest focus of this proposed legislation is an abolishment of the Supreme Court’s judicially created exceptions to patent eligibility, namely, abstract ideas, laws of nature, and natural phenomena. The proposed revision also states that section 101 “shall be construed in favor of eligibility.”

The draft text also defined “useful” (a statutory requirement for patentability of an invention) as “any invention or discovery that provides specific and practical utility in any field of technology through human intervention.”

Together, these changes, if enacted, will bring us back to the 1980 Supreme Court decision in Diamond v. Chakrabarty, wherein the Court concluded that patentable subject matter included “anything under the sun that is made by man”. Thus, the more recent Supreme Court rulings relating to exceptions to patent protection, such as Alice (2014), Mayo (2012), Myriad (2012) and Bilski (2010), will be effectively overruled.

This bipartisan reform will hopefully strengthen the U.S. patent system in a manner favorable to all inventors and patent owners by clarifying the eligibility standard and eliminating ambiguous exceptions to patentability that have become a plague that affected inventors and innovation in the United States.

At least three days of continued hearings for feedback, including numerous witnesses, are scheduled for June.

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