Search the archive.

WASHINGTON--With a new administration and a Democratic Congress, now is the time to overhaul copyright law, advocates for reform said Wednesday--but the complex nature of the issue makes copyright legislation nearly as unrealistic as ever. Representatives of songwriters and the recording industry faced off against open Internet advocates at the Future of Music Coalition's Policy Day here in Washington, demonstrating the entrenched divisions that remain within Democratic constituencies over copyright issues. While the public interest group Public Knowledge disputed the meaning of Net neutrality with the Recording Industry Association of America, the Songwriters Guild of America butted heads with YouTube over how to ensure that songwriters receive royalties for online videos. "We've been having these same issues for 10 years now, and we can never get attention because of the complexity of the situation," said Zahavah Levine, chief counsel for YouTube. Yet even with bank bailout plans and billion-dollar efforts at economic recovery keeping lawmakers busy, the climate in Washington may finally be right for copyright and intellectual property reform. The House Judiciary Committee this year elevated intellectual property issues from the jurisdiction of a subcommittee to the full committee because of increased interest in the matter. "This may be the very best opportunity this country will have for decades to do something about the issues you really care about," Michael Copps, acting chairman of the Federal Communications Commission, said in his keynote address at Wednesday's event. "We can have a media of which we can all be proud." Still, David Carson, general counsel for the U.S. Copyright Office, said he didn't expect Congress to get past performance rights issues and perhaps orphan rights. "Congress rarely steps in and fixes anything" related to intellectual property, Carson said. "The Pro-IP Act was tinkering around the edges--there was nothing really in there. Legislation just doesn't seem to be the way to make progress, no matter what your definition of progress is." Furthermore, the Obama administration has yet to make it entirely clear where exactly it stands on copyright issues. Obama must still appoint an IP enforcement coordinator, as well as someone to lead the U.S. Patent and Trademark Office. "It's really unclear which direction they're going," said Steve Marks, executive vice president and general counsel for the RIAA. "The question is, once you get past the more macro issues, whether you'll be seeing a balanced approach." The question remained as to what would be a reasonable approach to issues like Net neutrality. Gigi Sohn, the president of Public Knowledge, criticized Senator Dianne Feinstein's (D-Calif.) failed attempt to modify the Net neutrality provisions in the so-called stimulus bill. "The language would have equated reasonable network management with automatic copyright filtering," Sohn said. "Copyright filtering is not network management, it's content management." Marks took issue with Sohn's interpretation of Feinstein's proposal, while Rick Carnes, president of the Songwriters Guild of America said Net neutrality provisions must consider antipiracy efforts. Meanwhile, Levine of YouTube could not even agree with Walter McDonough, general counsel for the Future of Music Coalition, over whether groups representing music publishers could legally give YouTube data regarding which publishers own which songs. "We're talking about millions of songs we need to license, and we have no way of knowing who owns these," Levine said. "We want to pay." McDonough insisted that information could not simply be handed over. "The music people don't understand technology, and the technology people don't understand music," he said. The panelists concluded the best hope for copyright reform may come from the courts. The Supreme Court has so far refused to take up the Cablevision case regarding server-based digital video recording services, but the panelists said new developments could be significant. "If the Supreme Court takes up the Cablevision case, they could do something revolutionary," Carson said.

These clashes and disputes between creatives, corporations, artists, and developers only mark the beginning of a backlash against a new generation of impressive tools. While AI-generated art has the potential to create new opportunities and forms of expression, it also raises questions about the role of imagination and the subjective elements that have essentially defined art. As the debate around AI art continues, the ultimate decision on whether machines can create aesthetics that are considered novel and original seems to still rest within the hands of us humans.

Looking forward, the devil will be in the details as courts and creatives try to determine just how much human participation will be required in order to meet the human authorship requirement. Currently, the Copyright Office relies on applicant disclosures to identify AI-generated content, explaining that copyright applicants "have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author's contributions to the work." But in many instances (particularly as technology continues to evolve), this will not as straightforward as it sounds—how much will a human being need to have contributed on the input side, both quantitatively and qualitatively, in order to claim authorship over the resulting output? In addition to open questions related to output authorship and ownership, serious questions remain as to when the output of a GenAI tool can be found to be infringing on third-party works, as numerous lawsuits have already been filed alleging that GenAI tools have "scraped" and thus unlawfully digested and copied third-party works that are used to train the tool. Indeed, on August 30, 2023, and as part of the Copyright Office's ongoing AI Initiative, the Office published a notice of inquiry and request for comments on a variety of issues related to the intersection of copyright and AI, including "the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, and the legal status of AI generated outputs." The sets forth numerous specific AI-related questions for which the Copyright Office seeks comment, underscoring the significant challenges and uncertainty related to AI and copyright. The deadline for submitting comments to the Copyright Office is currently set for October 18, 2023.

The Stop Online Piracy Act52 (SOPA) and PROTECT IP Act of 201153 (PIPA) were the House and Senate versions, respectively, of bills designed to thwart the widespread availability of movies, music, and other media accessible on the Internet in violation of copyright law.54 These bills were promoted by large media lobbies, including the Motion Picture Association of America and the Recording Industry Association of America, as well as by the United States Chamber of Commerce.55 SOPA and PIPA were intended to operate by penalizing or prohibiting Internet search engines and web payment sites from providing access or payment to websites distributing material in violation of United States copyright laws.56 Initially, SOPA and PIPA had widespread, bipartisan support in Congress and appeared headed towards adoption as legislation.57 In December 2011, however, a collection of technology and Internet companies came out in strong opposition to the bills based on concerns about Internet censorship, the impact of the bills on free speech, and the potential for the legislation to stifle online innovation.58 Congressional leaders were taken aback by the rapid groundswell of public opposition to SOPA and PIPA, and in January 2012, they indefinitely postponed votes and other action on the legislation.59 This series of events may have been caused in part by the disconnect between expert and lay perspectives on intellectual property. The legislative debates concerning reform in this area are not likely over. Media piracy remains a significant challenge for certain industries, and concerns about how to address copyright infringement on the Internet continue to fester, raising the likelihood that Congress will consider revised versions of SOPA and PIPA in the future.60

It seems to be no more than common sense that a jurisdiction's approach to climate policy will be heavily shaped by economic factors. In particular, one would expect that jurisdictions whose economies rely heavily on fossil fuels would be unenthusiastic about reducing carbon emissions. On the other hand, jurisdictions with high potential for producing renewable energy would be more likely to favor emissions reductions. As one striking example, consider the vote on the Waxman-Markey climate change bill, which passed the U.S. House of Representatives by a [*323] single vote in 2009 before dying in the Senate.117 The House vote clearly reflected economic factors: "[f]orty-four Democrats voted against it, the vast majority representing Midwestern, Southern, coal-producing, and industrial states."118

One of the most controversial provisions restores the presumption of injunctive relief upon a finding that a patent is both valid and infringed. The new 35 U.S.C. 283(b) would state: (b) INJUNCTION — Upon a finding by a court of infringement of a patent not proven invalid or unenforceable, the court shall presume that— (1) further infringement of the patent would cause irreparable injury; and (2) remedies available at law are inadequate to compensate for that injury. The new provision would essentially overrule the U.S. Supreme Court’s decision in , 547 U.S. 388 (2006). In that case, the Court held that the presumption that an injunction should issue to a prevailing patent owner was inappropriate and that courts needed to apply the four-factor test that they have historically employed for injunctions. Below are several other : Claim Construction: The bill harmonizes the standard used in post-issuance proceedings at the Patent Trial and Appeal Board () with the standard used in district court litigation, codifying a recent USPTO rule. Burden of Proof: Another section harmonizes the PTAB standard of proof with that used in district courts, where “clear and convincing” evidence is needed to invalidate a patent. According to the bill’s sponsors, this standard gives appropriate deference to the USPTO’s initial expert examination and issuance of a patent, which is relied upon by inventors, patent owners, and investors. Standing Requirement in PTAB Proceedings: Under the bill, a petitioner in a PTAB proceeding would need to show standing, i.e. a business or financial reason to challenge the validity of a patent, just as in district court. Re-Examination of Patents: The bill harmonizes the treatment of re-examination proceedings with the treatment of inter partes review (IPR) post-grant proceedings and establishes clear guidelines for the treatment of parallel proceedings. Composition of PGR and IPR Panels: Adjudicators who decide whether to allow a post-grant proceeding would be distinct from the PTAB judges who will decide the outcome of a petition. Demand Letters: The Federal Trade Commission () would be empowered to police abusive, patent-related, demand letters. Specifically, demand letters sent in bad faith would be considered an unfair or deceptive act or practice within the meaning of section 5(a)(1) of the Federal Trade Commission Act. USPTO Funding: The bill eliminates fee diversion through the establishment of a new USPTO revolving fund in the U.S. Treasury. As argued by the bill’s sponsors, “Adequate, dependable funding is critical for timely, higher-quality patents.” Arguments For and Against Patent Reform Bill The STRONGER Patents Act is divisive, which is not surprising given the lack of consensus on how to . At the recent committee hearing, stakeholders argued strongly both in favor of and against the bill. Supporters maintain that changes are necessary to strengthen patent rights, citing that U.S. patents have become too difficult to enforce and too unreliable to justify investments in emerging technologies. As Innovation Alliance’s Executive Director Brian Pomper stated: The PTAB was intended to be a quicker and cheaper venue to challenge the validity of questionable patents, not an easier venue. In practice, it has been easier to invalidate patents in the PTAB than in district court, and the PTAB process has been abused by large corporations who have initiated repeated PTAB challenges against valid patents in ways not intended by Congress or tolerated in district court. This legislation is urgently needed to maintain our patent system’s role as an engine for U.S. economic growth and job creation, as it has done for more than 200 years. Critics of the STRONGER Patents Act argue that the existing inter partes review system provides a sufficient check on patent validity. They also maintain that the Supreme Court’s eBay decision has not been proven to stifle innovation. Prior to the hearing, a coalition of 27 university professors wrote a letter to Congress expressing their opposition to the bill. They wrote: The changes to IPR set forth in the STRONGER Patents Act are not necessary, given the Patent Office’s discretion over decisions of whether or not to institute IPR proceedings. That discretion allows the PTO to handle the highly fact-specific issues that arise in IPR proceedings on a case-by-case basis to address concerns that might arise about potential abuses of the IPR process. The bright-line provisions of the STRONGER Patents Act are both unnecessary and unwise.

The STRONGER Patents Act introduced now for the third Congress by Senator Chris Coons (D-DE) has provisions that, if enacted, would overturn eBay. Congress at large appears to have no desire to disturb this Supreme Court decision, and any bill that contains a provision overruling eBay cannot and should not be enacted. Such a bill would reopen the flood gates for PAEs to file patent infringement suits in federal district court armed with the threat of injunctive relief. At a time when most policymakers rightly argue that China and other countries need to do more to clamp down on intellectual property infringement, overturning the four-factor eBay v. MercExchange test would impose new hurdles and increase the PAE problem that Congress and the Supreme Court fought to address over the last two decades.

A proliferation of patents in the life sciences and biotechnology fields could lead to more patent infringement lawsuits and over the boundaries of intellectual property rights. This situation was directly addressed by the Supreme Court in the wake of the litigation explosion in the late 1990s and early 2000s. Should the PERA’s new patent eligibility standards restore those circumstances, increased litigation costs may be passed on to consumers in the form of higher drug prices and reduced choices, further exacerbating affordability issues. Any proposed expansion of patent eligibility for inventions involving natural products or biological molecules and processes could have significant implications for drug prices and affordability. By allowing broader patenting of naturally occurring compounds, genes, proteins, and biological processes, pharmaceutical companies would gain stronger exclusive rights over these fundamental building blocks of drug development. This may be particularly problematic in rapidly evolving fields like AI, precision medicine, and genetic testing, where the closer a patent is to an abstract idea or natural phenomenon, the more stifling its impact will be on the development of new inventions and applications.

Patent reforms related to AI and emerging technology have been controversial

On March 11, 2024, a coalition of businesses, technology companies, and think tanks released a letter to the Chairman and Ranking Member of the Senate Judiciary Committee, urging them not to move forward with the proposed Patent Eligibility Restoration Act (PERA), S. 2140. The act, introduced by Senators Tillis and Coons on June 22, 2023, aims to provide clarity by changing the language for patent subject matter eligibility. Currently, inventions must fall into one of four categories of subject matter – process, machine, manufacture, and composition of matter – to be eligible for patenting under Section 101 of the Patent Act (Section 101). However, the U.S. Supreme Court has noted three “judicial exceptions” – laws of nature, natural phenomena, and abstract ideas – that require further scrutiny for patent eligibility. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 216, 110 USPQ2d 1976, 1980 (2014) (citing Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589, 106 USPQ2d 1972, 1979 (2013). PERA attempts to replace these exceptions with a more specific list of ineligible subject matter, such as certain mathematical formulas, substantial economic processes, and unmodified human genes. Notably, these categories themselves have exceptions. This means specific inventions within the proposed list of ineligible subject matter may still qualify for patents. For example, a substantial process can be patent-eligible if it “cannot practically be performed without the use of a machine (including a computer) or manufacture.” Likewise, a human gene or other natural material can be patented if it is “isolated, purified, enriched, or otherwise altered by human activity” or “otherwise employed in a useful invention or discovery.” Since the act’s introduction, PERA opponents have cited two common arguments against it. First, it would disrupt two centuries of established U.S. patent law and make eligibility requirements even more confusing with its specificity, defeating the main purpose of the act. Second, and perhaps more contentious, PERA would allow the patenting of several ideas that would previously have been ineligible, leading to an expansion that some consider extreme. For instance, the March letter, signed off on by organizations from Amazon and Google to Domino’s and Berkshire Hathaway, claimed that many areas of daily modern life that require computers or similar technology, like business methods or data-storing devices, would suddenly become patentable under PERA. In January, a separate opposition letter to the Senate from a coalition of public interest groups, including the ACLU, echoed concerns about the impact of gene patenting under PERA. The letter warned that PERA could allow patents on isolated genes linked to diseases like Alzheimer’s or even pathogens like Covid-19. More importantly, the groups argued, PERA could grant companies ownership over how this genetic information is used and shared. This could lead to exclusive rights to diagnose and treat diseases based on these genes, potentially limiting access to these life-saving tools. The letter pointed to the successful, rapid development of the Covid vaccine, hinged on the free sharing of information about the virus’s genetic variations among researchers and biotech companies, that would not have happened had PERA been in effect; a single company could have patented the entire viral genome, potentially delaying further research and development.

Relatedly, stakeholders highlighted that the data do not support the inference that the current subject matter jurisprudence is having a negative impact on investment in innovation.358 One software industry organization reported that “[s]ince Alice, investment and innovation in the information industries have thrived.”359 The organization noted that “[a]ccording to the Bureau of Economic Analysis, for example, the ‘digital economy’—which includes high-tech goods and services, technological infrastructure, e-commerce transactions, and digital media—accounts for about 9.6% of U.S. GDP, and grew at 6.5% per year on average between 2005 and 2019.”360 Several commenters also pointed to more granular evidence of the post-Alice health of the technology sector.361 For example, in examining startup and venture capital activity, an industry association pointed out that $70.4 billion in U.S. venture funding was raised for technology-related activities with global investing at record levels.362 In comparison, this organization noted that China experienced a drop in venture funding during the same period. Moreover, some commenters contended that the United States remains the preferred destination for investment in AI.364 One software association referenced a robust 39% increase year over year of U.S. AI deals.365 This association noted that investment in AI in the United States was approximately $23.6 billion for the second quarter of 2021, more than double the investment in AI in the next two leading countries, that is, China and the United Kingdom.366 Another high-tech association asserted that investment in research and development has been particularly strong in the Alice-affected technologies, citing continued growth in venture capital and investments in startup companies, “with 2021 on track to be ‘another consecutive record-setting year.’”367 This association also referenced impressive growth in investment in startups involving affected technologies like AI, in which “funding for artificial intelligence firms reached a record high of $20 billion in 2021, up from $9 billion two years earlier.”368

The U.S. Senate is moving forward with two bills that would enrich patent trolls, patent system insiders, and a few large companies that rely on flimsy patents, at the expense of everyone else. One bill, the Patent Eligibility Restoration Act (PERA) would bring back some of the worst software patents we’ve seen, and even re-introduce types of patents on human genes that were banned years ago. Meanwhile, a similar group of senators is trying to push forward the PREVAIL Act (S. 2220), which would shut out most of the public from even petitioning the government to reconsider wrongly granted patents. Patent trolls are companies that don’t focus on making products or selling services. Instead, they collect patents, then use them to threaten or sue other companies and individuals. They’re not a niche problem; patent trolls filed the majority of patent lawsuits last year and for all the years in which we have good data. In the tech sector, they file more than 80% of the lawsuits. These do-nothing companies continue to be vigorous users of the patent system, and they’ll be the big winners under the two bills the U.S. Senate is considering pushing forward. Don’t Bring Back “Do It On A Computer” Patents The Patent Eligibility Restoration Act, or PERA, would overturn key legal precedents that we all rely on to kick the worst-of-the-worst patents out of the system. PERA would throw out a landmark Supreme Court ruling called the Alice v. CLS Bank case, which made it clear that patents can’t just claim basic business or cultural processes by adding generic computer language. The Alice rules are what—finally—allowed courts to throw out the most ridiculous “do it on a computer” software patents at an early stage. Under the Alice test, courts threw out patents on “matchmaking”, online picture menus, scavenger hunts, and online photo contests. The rules under Alice are clear, fair, and they work. It hasn’t stopped patent trolling, because there are so many patent owners willing to ask for nuisance-value settlements that are far below the cost of legal defense. It’s not perfect, and it hasn’t ended patent trolling. But Alice has done a good job of saving everyday internet users from some of the worst patent claims. PERA would allow patents like the outrageous one brought forward in the Alice v. CLS Bank case, which claimed the idea of having a third party clear financial transactions—but on a computer. A patent on ordering restaurant food through a mobile phone, which was used to sue more than 100 restaurants, hotels, and fast-food chains before it was finally thrown out under the Alice rules, could survive if PERA becomes law. Don’t Bring Back Patents On Human Genes PERA goes further than software. It would also overturn a Supreme Court rule that prevents patents from being granted on naturally occurring human genes. For almost 30 years, some biotech and pharmaceutical companies used a cynical argument to patent genes and monopolize diagnostic tests that analyzed them. That let the patent owners run up the costs on tests like the BRCA genes, which are predictive of ovarian and breast cancers. When the Supreme Court disallowed patents on human genes found in nature, the prices of those tests plummeted. Patenting naturally occurring human genes is a horrific practice and the Supreme Court was right to ban it. The fact that PERA sponsors want to bring back these patents is unconscionable. Allowing extensive patenting of genetic information will also harm future health innovations, by blocking competition from those who may offer more affordable tests and treatments. It could affect our response to future pandemics. Imagine if the first lab to sequence the COVID-19 genome filed for patent protection, and went on to threaten other labs that seek to create tests with patent infringement. As an ACLU attorney who litigated against the BRCA gene patents has pointed out, this scenario is not fantastical if a bill like PERA were to advance. Don’t Shut Down The Public’s Right To Challenge Patents The PREVAIL Act would bar most people from petitioning the U.S. Patent and Trademark Office (USPTO) to revoke patents that never should have been granted in the first place. The U.S. Patent and Trademark Office (USPTO) issues hundreds of thousands of patents every year, with less than 20 hours, on average, being devoted to examining each patent. Mistakes happen. That’s why Congress created a process for the public to ask the USPTO to double-check certain patents, to make sure they were not wrongly granted. This process, called inter partes review or IPR, is still expensive and difficult, but faster and cheaper than federal courts, where litigating a patent through a jury trial can cost millions of dollars. IPR has allowed the cancellation of thousands of patent claims that never should have been issued in the first place. The PREVAIL Act will limit access to the IPR process to only people and companies that have been directly threatened or sued over a patent. No one else will have standing to even file a petition. That means that EFF, other non-profits, and membership-based patent defense companies won’t be able to access the IPR process to protect the public. EFF used the IPR process back in 2013, when thousands of our supporters chipped in to raise more than $80,000 to fight against a patent that claimed to cover all podcasts. We won’t be able to do that if PREVAIL passes. And EFF isn’t the only non-profit to use IPRs to protect users and developers. The Linux Foundation, for instance, funds an “open source zone” that uses IPR to knock out patents that may be used to sue open source projects. Dozens of lawsuits are filed each year against open source projects, the majority of them brought by patent trolls. IPR is already too expensive and limited; Congress should be eliminating barriers to challenging bad patents, not raising more.

Four US Supreme Court decisions handed down from 2010 to 2014 changed decades-long understandings about what can be patented in the USA. The decisions directly affected practices in molecular diagnostics. Two decisions—Mayo v. Prometheus (2012) and Myriad v. Association of Molecular Pathology (2013)—directly addressed diagnostics. They eliminated patent-eligibility for many diagnostic method claims (Mayo) and isolated DNA corresponding to sequences found in nature (Myriad). This created significant uncertainty about what could be patented in molecular diagnostics (and other fields). The decisions disrupted genetic-testing service monopolies on testing one or a few patented genes for various clinical conditions, including inherited risk of breast and ovarian cancer. Before Mayo and Myriad, patented genes had been excluded from many tests for the fear of patent infringement liability. The Supreme Court opened the door to widespread, multigene testing by relieving that threat, so formerly patented genes were included in molecular tests, which became available at a lower cost at many more labs. After the Supreme Court decisions were handed down, several organizations concerned with patent law called upon Congress to abrogate the decisions by revising the definition of patentable subject matter in §101 of the US Patent Act. These efforts were fueled in part by claims that the decisions dampened investment, and therefore innovation, in clinical genomics. Responding to these claims, Senators Thom Tillis (R-NC) and Chris Coons (D-DE) introduced bills in the US Senate to amend §101 of the Patent Act—most recently S. 2140, the , which would eliminate judicial exceptions to patent-eligibility and replace them with a limited number of statutory exceptions. It is unclear whether the bill will become law. At the time of its introduction, GovTrack assessed its odds of enactment at 2 per cent. Yet, S. 2140 indicates that interest in a legislative remedy to the uncertainty created by patentable subject matter jurisprudence has not dissipated. It is an appropriate time to examine the practical consequences of statutory replacement of Supreme Court decisions with a more permissive doctrine of patent-eligibility. Here, we do so with a focus on consequences for molecular diagnostics, in particular the implications of the Myriad and Mayo decisions. The paper thus addresses doctrines of patent law but also traces real-world effects on molecular diagnostics.

Noting the integral role patents play in fostering the dissemination and advancement of technologies, one association representing IP owners explained that patents allow “others to stand on the shoulders of those who have invented before them.”245 A university’s patenting and licensing organization further explained that patents “are the best method to balance the public dissemination of information that academic freedom demands with the scientific controls that successful technology commercialization requires.”246 One nonprofit organization dedicated to natural products expounded that not only do patents provide technical data that are often used as the basis for incremental improvements but also “[w]ithout patents and the possibility of their enforcement, knockoff dietary supplements can (and will) proliferate the market” such that patent rights can facilitate product quality control, public health, and safety measures. 247 In addition, a national IP bar association noted that the data provided in patents facilitate faster developments and commercialization of new innovative products: “Patent protection has always been essential to encouraging earlier and broader disclosure of innovations, which not only helps to accelerate innovation by incentivizing alternatives but also makes it easier to commercialize innovation through investment and business transactions.”

Numerous commenters expressed the view that the current jurisprudence is beneficial to innovation and technological development.177 A civil liberties organization, for example, stated that the exclusions from patentability recognized under current law “play a crucial role in fostering technological invention that benefits the public i nt erest.” 178 Similarly, a nonprofit organization that supports collaborative knowledge projects added, “[E]xpanding patent-eligibility to include the basic tools of technological work would impede innovation more than it would promote it,” and cited as an example the free access to certain genomic information researchers have enjoyed in the fight against COVID-19.179 One investor further asserted that allowing patents to be obtained and enforced on “basic ideas,” particularly by nonpracticing entities (NPEs),180 causes otherwise productive businesses to spend limited money defending against infringement suits rather than on innovation and business growth.181

In addition to providing clarity and stability, many respondents claimed the current law also represents a general improvement to the patent system.137 One computer industry association, for instance, stated that, “[t]he current state of patentable subject matter jurisprudence is working well and should be retained.”138 Another industry association said its members “believe that current 101 jurisprudence has resulted in a healthier patent system.”139 A computer company likewise asserted that “the state of the law [is] amply predictable” and noted that it had not encountered a situation “where the viability of a commercial transaction [had] been significantly hampered by uncertainty” caused by the current law.14 Other groups focused on innovation benefits. A life sciences organization claimed that the Supreme Court’s decisions are “essential for fostering scientific research and innovation” and “have demonstrably clarified essential boundaries on subject matter eligibility.”141 A public interest group praised the Supreme Court’s decisions, stating that the “[c]urrent patent eligibility jurisprudence is faithful to the Constitution, the Patent Act, and the public’s interest in a patent system that promotes more innovation than it deters.”142

First, 469 seats in the U.S. Congress are up for election on November 8, 2016, along with the presidency. The simple fact is that patent reform, as a topic of national conversation, is not well-suited for stump speeches and televised debates. The concepts are not easily communicated to the general population, whose votes are the ones up for grabs at the moment. And, in contrast to the AIA—which passed under the auspices of a forward-looking, bipartisan “job creation” agenda—patent litigation reform has adopted the rhetoric of punishing bad actors, the goal being to “combat the scourge of patent trolls on our economy without burdening the companies and universities who rely on the patent system every day to protect their inventions.”12 That is a fairly difficult position to convey without first explaining what the patent system is, how it works, what a patent troll is, who they are harming, and how all that affects the economy. Thus, because of the general election cycle, the failure to gain passage in 2015 (in contrast to the failure to gain passage in almost any other year) may have graver consequences for supporters of patent litigation reform, given this inevitable shift in national attention. All of which underscores the tactical victory achieved by opponents of the bill in getting the July 2015 vote postponed.

Clement, et.al., June 17 Scott Clement, Emily Guskin and Dan Balz June 17, 2024 at 6:00 a.m. EDT The 2024 ‘Deciders’: Who are they and what makes them tick? https://www.washingtonpost.com/politics/2024/06/17/deciders-2024-election-poll/

Deciders say their top issues this year, those rated as extremely important, are the economy, threats to democracy in the United States and crime. On all three, more trust Trump to deal with them over Biden. About 6 in 10 rate the economy as extremely important and trust Trump over Biden by more than 2-to-1. More than half (56 percent) say threats to democracy in this country represent an extremely important issue — lower than the 7 in 10 among non-Deciders — and by a nine percentage-point margin (38 percent to 29 percent), Deciders say they trust Trump over Biden. About half (48 percent) rate crime as an extremely important issue and trust Trump over Biden by about a 2-to-1 margin.

Everyone involved in political analysis has pretty much assumed that no matter who wins the 2024 presidential (and for that matter, congressional) elections, it will be close. The reasons are obvious: with the arguable exception of 2008, when the size of ’s victory over was almost certainly enhanced by the proximity of Election Day to a , every presidential contest since 1996 has been extremely competitive. That includes a surprisingly close outcome in 2020 featuring the same two candidates who will meet this year. More generally, the two major parties appear to be in steady equipoise when it comes to . And while there’s aways a fierce ongoing battle over swing voters, the than it was in much of the last century.

Even as Trump has led in a majority of polls, there have been signs that the categories of voters most likely to turn out, notably college-educated voters, are leaning towards Biden, continuing an . As we get closer to November and pollsters begin to screen respondents for likelihood to vote, Biden could pull into a steady lead. Again, Trump’s criminal status might well solidify the disdain of some traditional Republican voters who are very likely to show up at the polls and rise up against the MAGA-fication of their party. If Biden can dispel perceptions he’s feeble or even senile during the , he could well re-build his winning coalition of 2020.

Among all the factors on voters' minds this election, former President Donald Trump's pales in comparison to issues like the economy, inflation, and the border — all items on which Trump maintains advantages. As such, the verdict has not dramatically reshaped the race. But what we do see is a few more Joe Biden voters activated out of opposition to . His vote has become increasingly centered around anti-Trump sentiment, more so than affinity for Mr. Biden himself. Today, most of Mr. Biden's voters say their main rationale is opposing Trump, and that's up from March. Whether that dynamic is enough to sustain Mr. Biden looms as one of the central questions of this campaign — a contest that today is essentially tied in likely voter preference, both nationally and across the collective battleground states.