PERA excludes trivial patents – a claim requires an article of manufacture or a computer

CHRISTOPHER COONS: Thank you, Director Kappos. Thank you to all the witnesses on this second panel. I might, at the risk of reopening a now well-traveled ground, Mr. Kappos, if you could just illustrate with an example, a claim currently ineligible that would be eligible under PERA, compared to a claim that would be ineligible under both current law and PERA. And Mr. Jones has argued that football plays and marriage proposals would be eligible under PERA. Do you agree?

DAVID KAPPOS: Yeah, starting with -- with football plays and marriage proposals, of course not. The essence of PERA is to provide in this area that an ineligible process, marriage proposal as an example, does not become eligible because you add -- put a ring on someone's finger. A football dance in the end zone does not become eligible because you had spike of football at the end of it. That's the language that that was included in the legislation that very clearly says that claim does not become eligible, If there's -- unless there's a no practical way to perform it without the use of a article of manufacture.

And in both of those cases, there is a practical way to perform the invention, if it were an invention. So I reject the notion that these silly claims would become eligible. I also hope that we can step back a little bit and recognize that it's absolutely terrible policy to guide our patent laws, something that's very serious to the health and future of our country, by reducing our discussion to trivial silly examples.

We should solve for the real issues involving our patent laws, which are computer implemented claims, which are claims like the ones going to truck axles and biomedical innovations.