Congress more reliable than the Court regarding patents

Reforming eligible subject matter requires a choice of institutional actor, and while the Supreme Court could choose to provide clarity, it has steadfastly refused to grant certiorari in cases raising eligible subject matter questions.62 Beyond the apparent lack of interest, the Court is constrained by its precedent and limited constitutional authority, as it is vested with only judicial—not legislative—power.63 Thus, while the Court could provide some measure of interpretive clarity, its authority to wholly rewrite patent statutes is limited both textually and doctrinally.64 Likewise, as a purely executive administrative agency, the US Patent and Trademark Office (USPTO) could not make such a change absent a valid delegation of authority from Congress.65

Congress itself, however, is not so limited. It has substantially greater fact-finding ability than courts, and its authority on the subject of patents is plenary.66 In fact, Congress has previously exercised this authority to rein in a judiciary that was perceived as overly hostile to patentees.67 Faced with the contemporary Court’s priorities, which some commentators see as similarly hostile, Congress has recently taken steps toward reform.68 Despite concerns over Congress’s ability to legislate effectively,69 the most recent and promising legislation, the Patent Eligibility Restoration Act of 2023 (PERA), provides a proposal that would wrest control over eligible subject matter away from the arcane realm of judicial exceptions and replace it with considerably less ambiguous statutory exclusions.7