PERA increases uncertainty – judicial exceptions create greater flexibility and stability in the law

The Patent Eligibility Restoration Act also fails to achieve its purpose of bringing clarity to the subject matter eligibility standard. The proposed legislation cites the supposed “extreme confusion and uncertainty” surrounding the current subject matter eligibility standard as its reasoning for getting rid of the judicially created exceptions but then uses subjective terms in the proposed legislation without providing guidelines for their meanings, while also ignoring the confusion and uncertainty that are certain to result from wiping out 200 years of jurisprudence. Moreover, the Act’s use of language that is taken directly from some cases that the Act intends to overrule would lead to uncertainty, since the meanings of those words and phrases would be unsettled without caselaw to support them. This would lead to years of widespread confusion regarding the standard until the Court could interpret their meanings, and possibly beyond that point.

As previously stated, the Act also asserts that the judicial exceptions should be eliminated because their application by judges has caused “extreme confusion and a lack of consistency” within the judicial branch of the federal government and federal agencies, and among patent practitioners.249 However, as discussed previously, independent analysis shows district court and PTO judges are applying the Alice/Mayo framework accurately and consistently arriving at the correct outcome for correct reasons.250 Further, Federal Circuit judges seldom disagree with one another on the outcomes of subject matter eligibility cases.251 Accordingly, it seems that Federal Circuit judges are not actually confused by how to apply the standard, nor are they applying it inconsistently. So why trade this system that seems to be working well at the moment for a completely new one that would introduce a new set of problems?

Accordingly, the best solution for right now is to do nothing. As mentioned above, there are many benefits to keeping the eligibility standard free of statutory exclusions.252 One of the most important benefits is that the judicial exceptions are more flexible and seem to stand the test of time better than statutory exclusions.253 Moreover, patent laws do not seem to be an important issue to many in Congress and, accordingly, it takes many years for new legislation regarding patent laws to pass. The authors of this Act have been trying to get it passed for four years and it is highly unlikely that it will be passed this session.254 Moreover, the other most recent legislation affecting patent law, the America Invents Act, took six years to pass.255 If the statute had to be amended often to keep up with advances and changes in perceptions, it would be highly inefficient, if not impossible. Thus, because judicial exclusions are much more capable of quickly adapting to advances in science and technology, as well as peoples’ perceptions of what is worthy of a patent, they are superior to statutory exclusions. Accordingly, the Patent Eligibility Restoration Act of 2023 and any future legislation that shares its goal of eliminating the judicial exceptions to patent-eligible subject matter should be opposed.