On April 18, 2019, Senators Thom Tillis (R-NC) and Chris Coons (D-DE), along with Representatives Doug Collins (R-GA), Hank Johnson (D-GA), and Steve Stivers (R-OH), released a bipartisan framework for 35 U.S.C. § 101 reform, available here. The framework outlines specific goals that any proposed legislation should aim to address.
The impetus for such reform stems from uncertainties in recent case law regarding what qualifies as “patent-eligible” subject matter since the U.S. Supreme Court’s holdings in Mayo Collaborative Services, DBA v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012), and Alice Corporation Pty. Ltd. v. CLS Bank International, 573 U.S. 208 (2014). The relative fluidity of patent eligibility jurisprudence since the Court’s decision in Alice has caused difficulties not only for potential inventors and industry, but also for the patent bar at large. Since the Alice decision, the USPTO has issued new guidance regarding how patent examiners are to analyze claims under section 101 at least once a year, with the exception of 2017. As many practitioners would attest, the application of the guidance can vary between examiners and art units, resulting in general confusion as to what exactly makes one claim patent eligible over another. Continue Reading