The U.S. patent eligibility law is placing the country at a competitive disadvantage.
The Court articulated a new two-step test to distinguish eligible subject matter from subject matter that falls within one of the exceptions.
The Supreme Court’s two-part test is not consistent with international norms. Congress is the appropriate body to recalibrate the proper scope of patent eligibility. There are several ways to legislatively fix the unduly restrictive test for patent eligibility for laws of nature, including amendments to section 101. Congress is the appropriate body to recalibrate the proper scope of patent eligibility. There are several ways to legislatively fix the unduly restrictive test for patent eligibility for laws of nature, including the following amendments to section 101.
- Legislative abrogate the judicially-created law of nature, natural phenomenon, and abstract idea eligibility requirements. Any patent to be issued would have to satisfy the express requirements of the statue (35 U.S.C. Section 102, 103, 112)
- All inventions that contribute to the “useful arts” (defined to include “all fields of technology”) would be entitled to a patent provided that all of the other requirements of the patent statue are met.
- Patent eligible claim may recite a practical application of a law of nature, abstract idea, or natural phenomena. New discoveries that narrow claims covering applications actually reduced to practice should be patent eligible. See, e.g. Ariosa Diagnostics, Inc. v. Sequenom, Inc., 809 F.3d 1282 (Fed. Cir. 2015) (Dyk, J., concurring).
- A new and useful product modified from its intact natural state to be used as a dietary supplement as defined in DSHEA (Pub. L. 103-147 Section 3)
NPA has been asking representatives and senators to work with the Judiciary to recalibrate the proper scope of patent eligibility, the process patents and claims patents for natural products have always been eligible for patentability, and should continue to be. Congress should request CRS, OIG, and GAO look into the matter to fix the unduly restrictive test for patent eligibility for laws of nature.