Creating unique specific protections balkanizes the patent system, reduces innovation and can’t solve until after damage to specific sectors has already occurred

6. Mr. Jones’s testimony included proposed alternative approaches to addressing concerns with the state of Section 101. He proposed the two possible alternative approaches: (1) “[] a narrow solution that is targeted specifically and exclusively at any areas of technology for which the current jurisprudence has created significant and empirically demonstrable impediments to obtaining patent protection to the extent that such impediments can be shown to have resulted in clearly insufficient levels of R&D investment.”; (2) “a broader legislative solution that tethers patentability to its underlying policy purpose by explicitly limiting the availability of patent protection to only those inventions that embody an advance in technology.” What are your views on these proposals as compared to the approach of PERA?

These two proposals by Mr. Jones are not proper solutions to the quagmire in patent eligibility doctrine produced by the Supreme Court, especially as compared to PERA.

First, economists have long recognized that the success of the U.S. patent system has been the securing of reliable and effective property rights to all inventors, regardless of their technological innovations. In other words, a key feature of the success of the U.S. patent system is its technology neutrality. None of the provisions of the Patent Act setting forth patent eligibility or patentability requirements, such as novelty, utility, nonobviousness, or disclosure are directed to any specific technological area or sector of the innovation economy. From the Patent Act of 1790 through the America Invents Act of 2011, the U.S. patent system has applied the same legal requirements to all inventions. This is the principle of technology neutrality. It is the patent law version of the equal protection principle: a right to property should be secured equally to all people regardless of who they are and what they own. Mr. Jones’s first proposal calls for technology-specific or commercial-sector specific amendments to the patent system, which threatens to Balkanize the patent system and undermine its efficient operation as a property rights system that promotes innovation, especially innovation that is unpredictable and unknown as to what will occur in the future. The Supreme Court expressly recognized this key legal feature in the Patent Act in its proper decision in 1980 when it approved the patent eligibility of new biotech innovations under § 101, stating “Congress employed broad general language in drafting § 101 precisely because such inventions are often unforeseeable.”11.

Second, there is further problem with the proposal that Congress can only amend the patent statutes when there are “empirically demonstrable impediments . . . shown to have resulted in clearly insufficient levels of R&D investment.” This creates a standard for patent reform that is, at best, impossible to meet, or, at worst, when it is met and such evidence exists of “empirically demonstrable” reductions in what is deemed to be an “insufficient levels of R&D investment,” the damage to the U.S. innovation economy has already occurred and the U.S. has now lost its technological leadership due to reduced R&D relative to global competitors like China. Moreover, there is an inherent contradiction in Mr. Jones’s claim that this proposal is somehow more determinate or certain than PERA, because he does not offer any empirical basis by which he purports to define what counts as “insufficient levels of R&D.” This is no more empirically known, and it is likely unknowable, than what counts as an “abstract idea” or “law of nature” under the Mayo-Alice inquiry. If Mr. Jones’s standard for legal reform were adopted, it would be virtually impossible to amend or extend patent protection to any new innovations being created and deployed from the Industrial Revolution to today’s biotech and mobile revolutions. Certainly, it would have been impossible to enact the 1952 Patent Act, as its reforms would not have met this empirical standard, nor would have any patent statute have met this standard reaching back to the first Patent Act of 1790.