Alex Moss is a staff attorney on the Electronic Frontier Foundation (EFF) intellectual property team, focusing on legal issues that affect innovation and creativity of all kinds. She is specifically interested in Section 101.

Intellectual Property attorney Anthony Fuga recently interviewed Alex about the current state of Section 101 law, potential legislative changes to Section 101, and patent law more generally. Their conversation has been edited for clarity and length.

Fuga: I know you’re familiar with the proposed legislative changes to Section 101. But before we discuss whether you like the proposed changes or not, do you believe any change to Section 101 is necessary?

Moss: No, I don’t believe a legislative change is necessary.

The debate on this topic is often whether there is enough being done to remedy the Section 101 problem. But that presumes there is a problem. Part of what troubles me is the framing of this debate – that Section 101 is extreme, an unknown. But it is not. The current state of Section 101 law is balanced; it’s a compromise.

If you look back around the time of Bilksi, there was a question of whether business method patents should be eligible at all – whether they should even exist. We see this also in the concurring opinion in Alice that says there should be a bright line rule against business method patents. But the Court settled on a compromise. These patents could exist but they need to be more than an idea tied to a computer.

So when we talk about this, I want to push back on the premise that the state of Section 101 law is extreme. I don’t view it as extreme. The law is already a compromise, and we do not need a congressional change to remedy an issue that is very much overstated. The law on Section 101 is a lot more consistent and tolerant than it is given credit for by congress and the pro-reform crowd. And I believe the data supports us on this.

Fuga: But what about the lack of certainty and confusion that is so often raised when discussing Section 101?

Moss: Again, I just disagree with the presumption. I imagine that your clients want certainty when discussing asserting a patent or defending a lawsuit, but they probably want certainty no matter what issue you litigate. Certainty does not exist in any area of litigation. There’s always a grey area.

That’s the same here. I don’t think there’s any more confusion surrounding Section 101 than any other area of law, and probably much less. For instance, clam construction decisions are reversed on appeal at a much higher rate than Section 101 decisions. Section 101 decisions, in fact, have very high affirmance rates.

And maybe this is part of the problem. Section 101 decisions are affirmed all the time but they do not receive much interest because they are often Rule 36 affirmances (editor: an affirmance without a written opinion). The Section 101 opinions that gain the most interest are the reversals like the recent Cellspin decision.

But again, the law is fairly clear. If you give a person five minutes with patent claims, she’ll normally be able to guess correctly whether it’ll survive a 101 challenge. Like any legal subject matter, there are easy cases and hard cases. But that does not mean we need to resort to a legislative change.

To the extent I see uncertainty with Section 101, it is when the law is not followed, when courts chip away at Alice. If certainty were the goal, we could accomplish that by having a bright line rule that no business methods are patent eligible.

But we do not need a lower bar for business method patents, as the Supreme Court realized in Alice. Courts should be able to do the inventive concept analysis. It might not always be clear – or completely certain – but that does not mean we need to scrap everything. There are some close cases, but there are many, many cases that are not even close.

Fuga: I understand you believe the concern over uncertainty is overstated, but what about the concerns about Section 101 hindering US innovation, at least as Section 101 is currently understood.

Moss: There are clearly going to be disappointed patent owners who cannot keep or assert the patents they have or disappointed applicants who may not be able to obtain a patent. But I do not see this as a threat to innovation. It boosts innovation.

Innovation occurs when we expand access to tools and ideas that are available, or should be available, to everyone. Removing bad software patents and granting fewer software patents has been beneficial for innovation in the US. If we look where innovation and growth is happening, it is where there is currently less patent protection. For instance, Section 101 and Alice have not affected manufacturing, but we see less innovation and growth there. The opposite is true for software and the tech industry.

When looking specifically at the software industry, a software product is not likely going to last commercially for twenty years. So if a patent owner is going to assert a patent in twenty years, it is unlikely to be against a competitor for that product. It is more likely to be done to slow innovation in a successful or emerging field.

And when we look at the worst software patents, they are typically used to target US companies, often smaller companies that cannot afford a defense. This forces companies to divert resources from innovation to patent defense or a settlement. That is what hinders US innovation.

Fuga: Looking back to the proposed Section 101 legislation, does it surprise you that both Senator Tillis and Senator Coons have been moving quickly on this?

Moss: Not really. Patent reform has been a pet issue for Senator Coons for as long as I’ve been paying attention. A couple years ago, he introduced the STRONGER Patents Act of 2017.

Patent reform is also popular now because the issues do not align along the same lines as red-blue politics. The lack of partisan rancor may make this uniquely appealing for the senators involved. We will be watching to see if we see a revised bill this summer as Senator Tillis indicated.