Our evidence reflects an overwhelming consensus

Patent eligibility law in the United States is in a state of disarray that has led to inconsistent court decisions, deep concern for the availability and reliability of patent protection in the innovative, investment and legal communities, and innovation-killing outcomes in patent prosecution and litigation. These facts have been extensively documented in numerous sources, including: the statements of all 12 active judges (as of 2021) of the nation’s only patent court, the U.S. Court of Appeals for the Federal Circuit; the findings and reports of the Executive branch across all recent Administrations; the bi-partisan conclusions of Congressional committees; a robust body of academic studies; and at least forty separate witness statements at the 2019 hearings on this issue before this Subcommittee, including statements from advocates that oppose Section 101 reforms.

Even a lone recent article1 downplaying the dismal state of affairs acknowledged that “[t]oo many critics to count—including academics, practitioners, legislators, and judges—have lambasted the patent eligibility framework as an unpredictable morass of confusion.” That same article relied on a single point to counter the overwhelming consensus—evidence of a high affirmance rate on Section 101 decisions. What that evidence actually shows, however, is that due to the uncertainty, innovators are avoiding investment in costly eligibility disputes in all but the most clear-cut cases, that lower courts are erring on the side of ineligibility in line with the signals coming out of the higher courts, and that the higher courts do not have clear standards to rely on to overturn ineligibility decisions of the lower courts. If anything, this is further evidence that nothing is working with Section 101—nothing.