Proposed law would redefine patent eligible subject matter in the United States.

A patent is a set of exclusive rights granted, by a government, to the inventor of a an invention. To be granted a patent an inventor must file a patent application. The United States Patent and Trademark Office reviews patent applications in the United States. When an inventor files a patent application with the United States Patent and Trademark Office a patent examiner will be assigned to prosecute the patent application. The patent examiner reviews content of the patent application and determines whether the invention defined in the patent application meets the requirements for a patent to be granted. The requirements for a patent to be granted are defined by a combination of federal law, federal regulations and court precedent. If the patent examine determines that the invention described in the patent application meets all the requirements for patentability the inventor will be granted a patent on the invention. A patent grants its owner the exclusive right to make use, sell and import the invention in the United States.

To be eligible for patent protection an invention must be considered patent eligible subject matter. There are two components to determine whether an invention is patent eligible subject matter, a statutory requirement and a judicial requirement. 35 U.S. Code § 101 defines the four basic categories of inventions that may be patented. The statute 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. Through court precedent several exceptions made to what qualifies as patent eligible subject matter. The United States Supreme Court has held that abstract ideas, laws of nature, and natural phenomenon are not eligible for patent protection. This means that if a patent is directed to one of the judicial exceptions, the patent will be found to be invalid.

Because abstract ideas, laws of nature, and natural phenomenon are the basic tools of scientific and technological work, the Supreme Court has expressed concern that monopolizing these tools by granting patent rights may impede innovation rather than promote it. The judicial exceptions have developed over several decades of litigation and the rules used to determine whether a judicial exception applies in a certain case are still rather ambiguous.

This ambiguity in the law has inspired some lawmakers to rewrite 35 U.S. Code § 101. A bipartisan bill has been introduced by Sen. Thom Tillis, and Sen. Chris Coons, to the Senate Judiciary Subcommittee on Intellectual Property. The draft bill would remove the term “new” from the present definition of 35 U.S. Code § 101 and remove the judicially made exceptions to subject matter patentability.

The revised Section 101 would read:
(a) Whoever invents or discovers any useful process, machine, manufacture, or composition of matter, or any useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
(b) Eligibility under this section shall be determined only while considering the claimed invention as a whole, without discounting or disregarding any claim limitation.

The following provisions would also be added to the statute:

The provisions of section 101 shall be construed in favor of eligibility.
No implicit or other judicially created exceptions to subject matter eligibility, including “abstract ideas,” “laws of nature,” or “natural phenomena,” shall be used to determine patent eligibility under section 101, and all cases establishing or interpreting those exceptions to eligibility are hereby abrogated.

People in favor of this bill say that it would make patent law more predictable and make it easier for inventors to get financial backing to promote their inventions.

Opponents to the revised bill say that it would allow people to claim a monopoly on nature, this could lead to patents on genes or other aspects of human physiology.

The bill is in its infancy, at this point we will have to wait and see what comes out of the Judiciary Subcommittee.

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