Patent Reform: Section 101 Draft Bill Released

Sens. Chris Coons (D-Del.) and Thom Tillis (R-N.C.), along with Reps. Doug Collins (R-Ga.), Hank Johnson (D-Ga.) and Steve Stivers (R-Ohio) released a bipartisan, bicameral draft bill that "would reform Section 101 of the Patent Act."

In its release, Rep. Johnson stated: "Section 101 of the Patent Act is foundational to the patent system, but recent court cases have upset what should be solid ground." Both Reps. Collins and Stivers emphasized their goal of American innovation leading the world and driving the economy.

The draft bill, pasted below and available here, includes a few provisions that underscore the draft bill’s intent: (1) the provisions of section 101 shall be construed in favor of eligibility; (2) 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 (3) the eligibility of a claimed invention under section 101 shall be determined without considerations relating to sections 102, 103, or 112.

The draft bill has prompted mixed reactions. Gene Quinn of IPWatchdog wrote that the draft bill is "good news" and would "largely fix the 101 problem" while the Electronic Frontier Foundation said that "a terrible patent bill is on the way."

Interested stakeholders are encouraged to provide feedback via email to intellectualproperty@tillis.senate.gov

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.