PERA will reduce patent litigation
Courtenay C. Brinckerhoff, 24 – registered patent attorney and have been representing chemical, biotech, and pharmaceutical clients before the USPTO for over 30 years. Answers To Questions For The Record from Senator Padilla, before the U.S. Senate Committee on the Judiciary Subcommittee on Intellectual Property, “The Patent Eligibility Restoration Act”, 1/23, www.judiciary.senate.gov/imo/media/doc/2024-01-23_-_qfr_responses_-_brinckerhoff.pdf //DH
My practice does not focus on patent litigation, but I understand that Alice and Mayo have impacted patent litigation by permitting patent challengers to invalidate patents at an early stage of litigation, such as at the motion to dismiss stage, on a record with very little or no evidence other than the patent document itself. Moreover, the uncertainty surrounding the scope of the “judicial exceptions” and the willingness of courts to invalidate seemingly concrete inventions as “abstract ideas,” has incentivized challenges based on patent eligibility. PERA would reign in the use of Section 101 as a blunt instrument against patents, and would require patent eligibility determinations to be made on a more precise basis.