PERA reforms are bipartisan and popular – uncertainty is viewed as bad for the economy

In an unusual bipartisan effort, Senator Thom Tillis (R-N.C.) and Senator Chris Coons (D-Del.) have introduced a pair of bills that seek to strengthen US patents by limiting permissible challenges. The bill led by Tillis, titled the Patent Eligibility Restoration Act of 2023 (PERA), seeks to clarify what technology is eligible for patent protection. The bill led by Coons, titled the Promoting and Respecting Economically Vital American Innovation Leadership Act (PREVAIL), seeks to increase the likelihood that patents survive challenges that may be brought through the Patent Office. The two bills show bipartisan support for substantial patent law reform. PERA seeks to reform the current standards for determining eligibility for patent protection, which have caused uncertainty and the invalidation of countless patents. Over time, the Supreme Court established a number of exceptions to eligibility and decreed that patents encompassing any such exception are invalid. The Supreme Court decisions, however, created uncertainty as to what technology could be protected by a patent. Following the Supreme Court decisions, courts have invalidated countless patents. The situation caused judges, US solicitors general, and the Patent Office to join together in requesting that the Supreme Court clarify patent eligibility. Unfortunately, the Supreme Court has consistently declined to offer any such clarification.