Current section 101 jurisprudence excludes entire industries from patents – specifically medical diagnostics

PERA fixes a broken Section 101. But it is also important to step back and look at the broader context. Section 101 is but one of several requirements for patent protection. PERA is about stopping the conflation between 101 and the other, more objective and useful tests for patentability—Sections 102, 103 and 112. Those tests have deep, well-established law behind them, and have all been strengthened in the last generation to help protect against overbroad patents in the tech area. Moreover, Section 101 is intended to serve as the gatekeeper to the patent system, and to exclude only those ideas that are clearly unsuitable, irrespective of merit, for any access to the patent system—all others should pass 101 and be tested against the more refined, tougher tests of 102, 103 and 112. The current state of 101 jurisprudence eliminates whole swaths of the technological universe before they even get a chance to be tested against 102, 103, and 112. And ironically, it is the most cutting-edge fields like advanced software and medical technologies, areas most in need of patent protection to support their development, that get left out—entirely excluded from the patent system.

PERA will let 102, 103 and 112 return to doing their jobs, and stop the confusion that has resulted in a jumble of all tests for an award of patent protection into one hairball that cannot sensibly be applied. If a claim is obvious or not novel, it will be denied under 102 and 103. If it is not well described or does not enable a person of ordinary skill in the art to practice the invention, it will be rejected under 112. But if the claim is none of the above, and does not fall within the few well-defined and robust exceptions under PERA’s new clarification of 101, it deserves to be granted patent protection. It really is that simple. A flowchart depicting the clean and effective scheme provided by PERA follows: