A bill that would rewrite patent eligibility law may start moving through the Senate next month.
Sen. Thom Tillis (R-N.C.) plans to introduce a bill soon after July 4, and work for swift Senate Judiciary Committee consideration, he said during a subcommittee hearing on the subject.
“Once our bill is introduced, I intend to work with quickly with ranking member Coons to get it on the Senate Judiciary Committee markup so we can take the next legislative steps in restoring certainty to our patent system,” Tillis, chairman of the panel’s intellectual property subcommittee, said at the June 11 hearing, referring to Sen. Chris Coons (D-Del.).
Tillis said that the feedback from three patent eligibility hearing this month convinced him that draft text of a bill must be refined to ensure that “true abstractions, natural laws and naturally occurring phenomenon” remain ineligible for patenting.
“We need to further enhance our proposal for Section 112(f) so that vague business methods and generic computer claims can’t pass muster and be weaponized against small businesses, startups and entrepreneurs,” he said. That section in federal patent law covers how language in patent claims can express a means or step for performing a function.
A new patent eligibility law could undo U.S. Supreme Court decisions that attorneys say has left the law poorly defined, making it easier for companies win patents to protect their inventions. Such rulings have made it harder for companies to raise venture capital, and protect their inventions in legal disputes, some trade groups say.
Technology, pharmaceutical and biotechnology industry representatives, and other supporters of a patent eligibility revamp, lauded the proposed changes as a way to boost innovation. But opponents, such as the High Tech Inventors Alliance, which represents Alphabet Inc.'s Google and Amazon.com Inc., asked lawmakers to preserve the existing law’s eligibility test.
Representatives from Qualcomm Corp., IBM Corp., Novartis International AG and Genentech Inc. urged legislative action to protect innovations in emerging technology areas, including 5G, personalized medicine, diagnostics, artificial intelligence and quantum computing, at the June 11 hearing.
Proposed changes to Section 101 of patent law “would allow for companies like Qualcomm to innovate with confidence that our innovations will not be denied patent protection based on ambiguous standards eligibility,” Laurie Self, Qualcomm’s senior vice president and counsel, government affairs, said.
But more discussion is needed on Section 112(f), because the proposed amendments could allow rivals to copy technological inventions and avoid infringement complaints by amending their patents, Self said.
The American Civil Liberties Union expressed concern at a prior hearing that the draft legislation would let companies patent human genes that the law now prohibits. Tillis called the ACLU’s argument a “false narrative” at the June 11 hearing.
“If it’s not new it can’t be patented and we all know the human genome has been mapped and it’s available for public use,” Tillis said.