Sens. Chris Coons (D-Del.) and Thom Tillis (R-N.C.), along with Reps. Doug Collins (R-Ga.), Hank Johnson (D-Ga.), and Steve Stivers (R-Ohio), have unveiled a bipartisan and bicameral framework on Section 101 patent reform. The framework, released last week, is short – only one page – but the intent is clear: temper the Section 101-based rejections and invalidations that have skyrocketed since the Supreme Court's 2014 Alice decision.
For instance, the framework would define an exclusive set of categories of statutory subject matter that alone should not be eligible for patent protection, and "statutorily abrogate judicially created exceptions to patent eligible subject matter." The framework would also "create a 'practical application' test to ensure that the statutorily ineligible subject matter is construed narrowly."
Sen. Coons emphasized the framework's intent, saying in a press release: "Today, U.S. patent law discourages innovation in some of the most critical areas of technology, including artificial intelligence, medical diagnostics, and personalized medicine ... I look forward to continuing to receive feedback as we craft a legislative solution that encourages innovation."
Rep. Stivers echoed that sentiment: "We have the opportunity to advance our society in so many exciting and unknown ways, and we need to ensure we have a patent system that encourages that kind of game-changing innovation, instead of stifling it."1
Conclusion and Next Steps
Big tech, pharmaceutical companies, trial lawyers and intellectual property owners will surely be paying attention to the framework's progress, but it is unclear how quickly it will move forward – or whether it will move at all. The next step for the legislation would be to turn the current framework into full legislative text. Once the legislation is formally introduced, it would have to survive markups in both the House and Senate Judiciary Committees as well as votes by the full House and Senate.
Reforms to patent eligibility will garner significant interest, and its ultimate enactment will require its sponsors to make its enactment a priority before the politics surrounding the 2020 presidential election take over next year. This particular proposal has the benefit of bipartisan support from leaders on the House and Senate Judiciary Committee that give it real potential for enactment. Interested stakeholders are encouraged to engage with Congress as early as possible to let their voices be heard.
1 The statements by Sen. Coons and Rep. Stivers, as well as the framework's language, are in this press release: "Sens. Coons and Tillis and Reps. Collins, Johnson, and Stivers Release Section 101 Patent Reform Framework," April 17, 2019.