The CP increases uncertainty by only applying to tech areas that have been harmed by current jurisprudence rather than across the board

Turning to Mr. Jones’s approaches, I understand alternative (1) to be a backward-looking approach that would only attempt to remedy harm after it had occurred. I do not understand how such an approach could promote investment in innovation. Once R&D investment has not occurred in a given area of technology, it will be too late to incentivize innovation in that space. The fallacy of this approach is underscored by the fact that the technologies addressed by PERA can be patented in other countries. Thus, even today innovators in other countries are still incentivized to invest in R&D, and publish and patent their inventions in these areas, leaving U.S. innovators out in the cold.

Furthermore, it seems likely that alternative (1) ultimately would create additional unpredictability and inconsistency. It already is difficult to pin down which industries would qualify as “areas of technology for which the current jurisprudence has created significant and empirically demonstrable impediments,” and this difficulty will be exacerbated as lines between various “areas of technology” continue to blur. For example, methods of treatment are still eligible for patenting under the current judicial exceptions, but as the industry continues to shift towards reliance on big data, artificial intelligence, and personalization, there is a risk that certain types of treatments will be deemed ineligible under the “abstract idea” or “natural phenomenon” paradigms. If this occurs, there could be a divide across the health care industry, with some treatment modalities eligible for patenting and some that would experience “significant and empirically demonstrable impediments” and not be brought to market due to lack of availability of patent protection.