The ambiguity of patent eligibility has been a growing issue of concern for many, particularly in the wake of recent rulings by the Supreme Court and Court of Appeals for the Federal Circuit. Among those concerned is the American Bar Association Section of Intellectual Property Law (ABA-IPL).
In response to a U.S. Patent and Trademark Office (USPTO) invitation for public comment on patent matter subject eligibility, the ABA-IPL Section sent a letter to request amendments to Section 101 of the Patent Act.
The ABA-IPL’s letter, written by Donna P. Suchy, Intellectual Property Section Chair, to The Honorable Michelle K. Lee, USPTO Director and Under Secretary of Commerce for Intellectual Property, discusses how recent court decisions have “injected ambiguity into the eligibility determination.” As a result, investment in new technology may be viewed as a risk, which can affect our country’s position of leadership with these types of inventions.
Included in the letter is ABA-IPL written and approved legislative language for the Section 101 statute amendment. The proposed language focuses on prohibiting patents that preempt the use by others of “all practical applications of laws of nature, natural phenomena or abstract ideas.”
The revised amendment drafted by the ABA-IPL is not intended to be proposed final language, but rather a starting point for discussion among invested parties. “We believe it is an important first step toward a politically palatable solution to the unworkable and detrimental state of current 101 jurisprudence,” Suchy wrote. The proposed language is also similar to the Intellectual Property Owners Association, although they are seeking more to define what inventions are non patent-eligible.