On 22 May, a group of lawmakers released a draft bill to reform the law on patent subject matter eligibility under 35 U.S.C. § 101. The draft bill would prohibit using "judicially created exceptions" and disallow analyzing considerations relating to other sections of the Patent Act when determining § 101 eligibility. If enacted, the bill is expected to lower the eligibility standard and significantly impact patenting of software and business method inventions.

Elimination of "judicially created exceptions" from eligibility analysis

The draft bill would prohibit the use of "judicially created exceptions," such as "abstract ideas," "laws of nature," and "natural phenomena" when determining subject matter eligibility under § 101. It also states that "all cases establishing or interpreting those exceptions to eligibility are hereby abrogated" — which would undo seminal Supreme Court decisions—and that the "provisions of section 101 shall be construed in favor of eligibility."

Removing considerations relating to other sections from § 101 analysis

The draft bill seeks to amend § 101 by striking the word "new" — in the context of "Whoever invents or discovers any new and useful process, machine, . . . or any new and useful improvement thereof . . ." — likely intended to limit the scope of § 101 to utility and subject matter eligibility, so that novelty would be analyzed under other sections of the Patent Act (e.g., § 102). In fact, it goes on to expressly state that the "eligibility of a claimed invention under Section 101 shall be determined without regard to" various considerations "relating to sections 102, 103, or 112 of this title."

The draft bill also seeks to add a provision to § 101 that emphasizes that subject matter eligibility analysis needs to consider all claim limitations and "the claimed invention as a whole." This proposal is likely directed to help avoid overlooking important aspects of an invention.

It also includes a definition of the term "useful" to be added to the list of definitions in § 100.

Click on the link above to view the annotated changes.