PERA removes uncertainty for patent eligibility – the exclusions are clear and easily applied

That is precisely where PERA comes in. Senators Tillis and Coons have proposed sensible and practical legislation that fixes the problems with 101 in a calibrated way, moving away from the unduly constrictive, un-administrable test we have been struggling with based on highly subjective concepts like “abstractness”, to much more definable, specific and objective tests. Under PERA, there are no nebulous, constrictive judicial exceptions. Any invention or discovery that can be claimed as a useful process, machine, manufacture or composition of matter, or any useful improvement thereof, is eligible for patent protection, except as provided explicitly in the statute. These are the four categories that have served us well for over 200 years, until the Supreme Court began adding “judicial exceptions” to modify Congress’ legislation.

PERA’s exclusions from eligibility, moreover, are clearly defined and easy to apply. Excluded categories include pure mathematical formulas and mental processes, unmodified genes in the human body and unmodified natural material existing in nature. PERA also excludes substantially economic, financial, business, social, cultural or artistic processes, even when followed by language like “do it on a computer”, as long as such processes can be practically performed without the use of a machine or manufacture.

The result is legislation that balances ensuring IP protection for those innovations that deserve it, while providing reasonable, tailored, administrable, exceptions to safeguard from inappropriate claims, including claims that attempt to game the system.