Let’s say you’re the leader of a very big company. You know with the serene confidence of entitlement that you and your company are very, very important – much more important than the little, insignificant, unimportant people out there – the ones who own patents.1
You’re annoyed that the unimportant people, the ones who own patents, get in your way and insist that your very important company not infringe their patents, or at least compensate them if you do. So you mobilize your army of PR persons, lobbyists and lawyers. You create new pejorative terms, like ‘patent troll,’ to demonize those who try to enforce their patent rights. You convince states and the Federal Congress to restrict patent rights.
How Big Tech and the Courts Undermined Patent Rights
Finally, the Supreme Court gets into the act. What better way to restrict patent rights than to have the Court functionally exclude entire areas of endeavor from any patent protection at all? Areas like, say, computer software and entire categories of biomedical inventions.
Because there is nothing in the U.S. Constitution or statute that states that specific categories of otherwise useful, new and non-obvious inventions should be excluded from patenting, the Court was forced to create a confused melange of rules and analyses to determine whether an invention is “patentable subject matter.” While the Court’s approach appears to have at least some organization on its surface, to this observer it appears more akin to Justice Stewart’s definition of obscenity – “I know it when I see it,” and has been the subject of considerable confusion, uncertainty, and arbitrariness.
Not good for inventors, not good for patent owners, not good for investors.
Will the Patent Eligibility Restoration Act Fix the Problem?
Perhaps that’s about to change. The bipartisan “Patent Eligibility Restoration Act” (PERA) has been floated in each of the last three sessions of Congress. It has never gone anywhere. This year may be different. Why? Because John Squires has been nominated as Director of the USPTO. In his nomination hearings, Mr.Squires expressed approval of PERA. In addition, Mr. Squires’ future boss, Secretary of Commerce Howard Lutnick, is an inventor with hundreds of patents and applications to his credit.
If it becomes law, PERA would do away with all of the judge-made exceptions to patentability. Instead, PERA would add a specific list of inventions in the statute that cannot be patented:
(i) A mathematical formula that is not part of … [another] invention….
(ii) A mental process performed solely in the mind of a human being
(iii) An unmodified human gene, as that gene exists in the human body.
(iv) An unmodified human gene that is isolated from the human body.…
(v) An unmodified natural material, as that material exists in nature.
(vi) A process that is substantially economic, financial, business, social, cultural, or artistic.
Also:
…process claims drawn solely to the steps undertaken by human beings in methods of doing business, performing dance moves, offering marriage proposals, and the like shall not be eligible for patent coverage…
Many of these are succinct summaries of the court decisions getting us where we are today. The difference is that the rules are definite and definitely applicable, providing predictability and certainty. Courts, companies and investors are not required to guess whether a particular technology can be patented or not. Also the Court’s ability to lead us all into the wilderness is curtailed.
Note that there is one area of technology, currently limited, that is not on this list; namely, computer technology and software. Computer technology would be patentable under PERA unless that technology ran afoul of one of the above exceptions.
The very, very important people with the very, very important companies have taken notice. The armies of PR people, lobbyists, and lawyers are being mobilized. This Administration has proven itself to be remarkably resistant to pressure, including pressure from very, very important people. We can only hope that this resistance works for the passage of PERA and restoration of some sanity to patent eligibility.
__________________________________
1 “Patents are for the weak.” Elon Musk. Incidentally, Tesla, Inc. and Tesla Motors, Inc. own some 7,345 patents, 423 on applications filed in the last five years.
— Robert Yarbrough, Esq.