USPTO asks: Does patent eligibility case law affect business?

(Reuters) – The US Patent and Trademark Office is asking for public input on the effects of various precedents surrounding patent eligibility on critical industries, according to a Thursday report to be published Friday.

The notice asks for comment on how the “current state of patent eligibility” is affecting specific areas, including quantum computing, artificial intelligence and pharmaceutical treatments, as well as the US economy as a whole.

The request is in response to a March letter from a bipartisan group of senators asking for more information about the “dramatic negative effect” the “lack of consistency and clarity in our country’s patentability laws” has had on investment, research and innovation.

The USPTO declined to comment.

Inventions relating to abstract ideas, natural phenomena and natural laws cannot be patented under Article 101 of the Patent Act. The U.S. Supreme Court last considered patent eligibility in Section 101 in Alice Corp v. CLS Bank International, a landmark 2014 decision that helped establish a two-part test to determine whether a patent covers an abstract idea.

Critics say that case and its offspring led to unpredictable eligibility decisions and the cancellation of valid patents. The 2019 American Axle v. Neapco case left the patent-focused U.S. Court of Appeals for the Federal Circuit “bitterly divided” on the issue, in one of the judge’s own words, and the Supreme Court is currently deciding whether to hear it. .

The bipartisan March letter, signed by Republican U.S. Senators Thom Tillis of North Carolina and Tom Cotton of Arkansas and Democratic Senators Mazie Hirono of Hawaii and Chris Coons of Delaware, said it had been “a long time since Congress took action against this. problem”, and requested a PTO report to help decide what action to take.

Comments will be submitted on September 7.

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