Sui generis is preferable to PERA and accesses the net benefit – prefer comparative evidence from industry experts

While HTIA has strong concerns about PERA as currently drafted, we remain committed to the effort to address legitimate concerns with respect to patent eligibility. For years, HTIA has invested substantial time and resources into engagement on this issue, and we will happily continue to engage with interested members of Congress and stakeholders on all sides of this debate in the hopes of finding common ground. Although we do not believe that there currently is significant empirical evidence to support the dramatic changes proposed by PERA, we also acknowledge that there are concerns expressed by other stakeholders that appear to have some legitimacy and likely warrant further consideration.

That being said, HTIA firmly believes that the fundamental goal of the U.S. patent system is—and must remain—the promotion of technological advancement. Accordingly, HTIA remains ardently opposed to any legislative reform that would expand patent eligibility to encompass non-technological ideas and processes. As discussed above, there is every reason to believe that such an expansion would substantially weaken incentives to invest in technological research and development, while enriching the (mostly foreign) owners of U.S. patents at the expense of American consumers and businesses. With that preface (and associated caveats), I continue to believe that there are at least two potential paths forward that would present vastly less risk of harm from unintended consequences and that should attract less opposition from stakeholders as a whole.

The first of these is to focus on 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. Ideally, the solution to such a problem would be to create a new form of sui generis intellectual property that would be available only for innovations in the identified fields of technology, thereby minimizing the risk of harming existing incentives or imposing substantial unnecessary costs or business uncertainty with respect to areas of technology that cannot be shown to have been harmed by the current jurisprudence. As noted above, the relevant data from the ten-plus years since the principal Supreme Court decisions at issue in this debate suggest that there are no widespread problems. But, to the extent that it can be shown that these decisions created gaps in protection for narrow classes of technology, a targeted, sui generis solution should be adequate to fill them and restore appropriate incentives to innovate while minimizing the risk to the interests of most stakeholders as well as the risk of negative unintended consequences more generally. Importantly, this type of sui generis protection could be modeled after patent protection, with the main difference being that subject matter eligibility would extend only to the specific, narrowlydefined categories shown to have been harmed. Such a targeted solution could provide intellectual property rights that would be equivalent to patent protection without creating unnecessary challenges with respect to the broader areas of technology for which current eligibility law appears to be working well.