Empirically – expanding patent eligibility increases a flood of infringement suits

d. Expanding patent eligibility to include non-technological innovations would cause real and substantial harms.

While patents on football plays and marriage proposals are not themselves of much concern to HTIA, they demonstrate the vastness of the non-technological subject matter that falls between what is currently patent eligible and what would be eligible under PERA. As amply demonstrated by the history of patent litigation in this country, HTIA’s concerns are more than credible, given the well-documented harm imposed on HTIA members (and many others) by the assertion of patents for non-technological “inventions” such as business methods prior to the Alice decision. Having experienced the flood of lowquality patents claiming business methods “on a computer” in the wake of the introduction of personal computers and a second flood of similarly harmful patents claiming nontechnological processes performed “on the internet,” HTIA members and other similarly-situated technology companies were forced to absorb billions of dollars of additional (and completely unnecessary) litigation costs in order to defend themselves against infringement suits based on patents—mostly involving obvious implementations of business methods—that were invalid under Supreme Court caselaw and should never have been issued.

In addition to these very sizeable direct economic costs, tech companies have also experienced first-hand the substantial business distractions, disruption, and uncertainties associated with the meritless—but all too often profitable—assertion of invalid patents. The expansion of patent eligibility to nontechnological subject matter is of particular concern to HTIA due to the decreased availability of review by the PTAB—largely as a result of the practice of discretionarily denying meritorious petitions – and because the PTAB is not allowed to consider patent ineligibility as grounds for cancellation in an inter partes review. Based on these very negative first-hand experiences and the well-documented litigation abuses that resulted from these past booms in patenting, HTIA and its members would urge Congress not to squander America’s current technological advantages with respect to critical emerging technologies such as artificial intelligence and quantum computing by repeating these past mistakes.

Some argue that concerns about extending patent eligibility to non-technological subject matter should be dismissed because problematic patents would be screened out by sections 102, 103, and 112. This argument is refuted by historical experience. The truth is that, prior to Alice, patents on equally “silly” (and seemingly obvious) inventions—such as swinging sideways on a swing21 or exercising a cat using a laser pointer22—were not screened out by other statutory requirements but rather were issued. More importantly, this argument misses the point that allowing the patenting of nontechnological processes undermines the core purpose of the patent system irrespective of whether the activity at issue is novel, non-obvious, and adequately enabled and described. For example, there is evidence that the availability of patent protection for business methods directly harmed investment in technological R&D.23 Disincentivizing investment in technological innovation is the opposite of the purpose of patent protection—and the opposite of what would promote U.S. competitiveness and economic growth.