GMU Center for Intellectual Property x Innovation Policy: Restoring Predictability to Patent Eligibility
Executive Summary
The law surrounding patent eligibility, or the standard for what types of invention are able to be patented, has changed dramatically over the last fifteen years. What started as a broad and inclusive standard, “anything under the sun that is made by man,” has now been narrowed and made much more confusing by a quartet of Supreme Court cases in the early 2010s.
Because of the ambiguity about what types of inventions are eligible to receive a patent, firms are rethinking their investments in inventive and innovative activity; without the possibility of receiving a patent to protect that investment, some firms are moving their R&D activity to other jurisdictions with clearer and more inclusive standards, while others are leaving the innovation space altogether.
The Patent Eligibility Restoration Act (PERA) is intended to address this problem by clarifying what types of inventions may be patented by returning to a broad and inclusive standard and eliminating the confusing precedent imposed by the Supreme Court’s cases, while still providing a list of exclusions to patent eligibility to ensure that invention and innovation can continue to
flourish. By restoring a level of predictability to patent eligibility, PERA will encourage firms to continue their cutting-edge inventive and innovative activities in the United States.