Patent Eligibility Restoration Act

It is based on a proposed law called the “Patent Eligibility Restoration Act”. This law would do three things (the plan doesn’t do all of it):

Removes the word “new” from § 101 because it’s already addressed in § 102. This plan doesn’t do that because the argument in favor of doing this is dumb.

It eliminates the judicial exceptions entirely

It codifies new exclusions to eligibility:

--mathematical formulas - may not obtain a patent for a mathematical formula that is not part of a claimed invention

--business methods - may not obtain a patent for a process that is substantially economic, financial, business, social, cultural, or artistic if the process can be practically performed without the use of a machine or manufacture

--mental and natural processes - can’t obtain a patent on a mental process performed solely in the mind, or a natural process that exists in nature without human intervention

--human genes - may not obtain a patent on an unmodified human gene, as it exists in the human body

The plan doesn’t do #3. That might seem like a huge omission, but those new exclusions don’t actually accomplish anything. For example, mathematical formulas should not be patentable, but they wouldn’t have been patentable anyway under prior interpretation of § 101.

Including those exceptions in the plan would probably not be topical, and they definitely would not be defensible, because they don’t do anything. If you’re looking for a solvency advocate that accounts for this plan without the exceptions, you have two options:

--1ac Rafetto. While he likes PERA, his proposal is much broader, and his argument is that other sections (102, 103, 112) prevent weak patents. He in fact says it’s unlikely the overall number of patents changes, even with the broad proposal

--the Morinville evidence in the solvency extensions is a good approximation of the plan