Draft Framework Released

As previously discussed, Congress is poised to revise the law of patent eligibility under 35 U.S.C. § 101. To this end, a draft framework has been floated in advance of three upcoming stakeholder meetings on the Hill (June 4th, 5th and 11th).

Today, U.S. Senators Thom Tillis (R-NC) and Chris Coons (D-DE), Chair and Ranking Member of the Senate Judiciary Subcommittee on Intellectual Property, and Representatvie Doug Collins (R-GA-9), Ranking Member of the House Judiciary Committee, Hank Johnson (D-GA-4), Chairman of the House Judiciary Subommittee on Intellectual Property and the Courts, and Steve Stivers (R-OH-15) released a bipartisan, bicameral draft bill that would reform Section 101 of the Patent Act.

The draft bill (here), is explained as coming after months of discussions with interested stakeholders. The draft framework is argued as representing a true balance that will restore integrity, predictability and stability to our nation’s patent system, while also preventing the issuance of overly broad patents. The sponsors expect feedback on this draft bill text at the upcoming hearings, the relevant text is below:

Section 100:

(k) The term “useful” means any invention or discovery that provides specific and practical utility in any field of technology through human intervention.

Section 101:

(a) Whoever invents or discovers any useful process, machine, manufacture, or composition of matter, or any useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

(b) Eligibility under this section shall be determined only while considering the claimed invention as a whole, without discounting or disregarding any claim limitation.

Section 112

(f) Functional Claim Elements — An element in a claim expressed as a specified function without the recital of structure, material, or acts in support thereof shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.

Additional Legislative Provisions:

The provisions of section 101 shall be construed in favor of eligibility.

  • No implicit or other judicially created exceptions to subject matter eligibility, including “abstract ideas,” “laws of nature,” or “natural phenomena,” shall be used to determine patent eligibility under section 101, and all cases establishing or interpreting those exceptions to eligibility are hereby abrogated.
  • The eligibility of a claimed invention under section 101 shall be determined without regard to: the manner in which the claimed invention was made; whether individual limitations of a claim are well known, conventional or routine; the state of the art at the time of the invention; or any other considerations relating to sections 102, 103, or 112 of this title.

Interestingly, 112 is tightened up on functional claiming. Likely a bargaining chip in view of the tech sector’s general opposition against watering down 101 as suggested.

Should make for an interesting summer!