Limiting patents to cases that show an advance in technology is an impossible standard to meet

Finally, with respect to his second proposal that patent protections be limited to “advances in technology,” this fails the purported empirical standard proposed by Mr. Jones in his first proposal. On the one hand, it is never clear if new innovations, such as the biotech and computer innovations secured as patent eligible by the Supreme Court in the early 1980s under the broad terms of § 101,12 represent actual “advances in technology.” What counts as an “advance in technology” is the question at the heart of the reform effort represented by PERA, in which real-world technologies in industrial and consumer machines, drugs, medical tests, and other innovations are now rejected by courts and the USPTO as ineligible from protection by the patent system as such. On the other hand, Mr. Jones appears in his proposal to limit “technology” to an excessively narrow conception of “technology,” such as machines, computer hardware, industrial products, etc. But the U.S. patent system has never limited itself in such ways. From the very beginning, Congress adopted a very expansive conception of the “useful Arts” that is authorized in the Constitution to promote with a patent system, and thus the U.S. protected processes, including even business methods from the first decades of the country through the nineteenth and twentieth centuries, as I explained in my written testimony submitted for the hearing on January 23,

2024. Thus, Mr. Jones’s second proposal is a radical change to the patent system that would codify an extremely narrow conception of patent eligibility—the same narrow conception of patent eligibility that has plagued innovators since the Supreme Court created the Mayo-Alice inquiry as a judicial gloss on § 101.