It may seem like there’s little if anything that currently has bipartisan agreement in Congress. However, lawmakers have recently managed to reach across the aisle in the Senate to craft two pieces of legislation aimed at updating the U.S. patent system.
One is the Patent Eligibility Restoration Act (PERA). The goal is to eliminate court-approved exceptions to U.S. patent eligibility law. While the legislation has been lauded overall in the patent community, some who work for companies that would be affected by any changes have argued that it doesn’t solve any problems and can in fact make inventions involving artificial intelligence (AI) and other emerging technologies ineligible for patents.
What should be treated as prior art?
In a Senate committee hearing early in the year, one witness who testified on behalf of a medical genetics company argued that “PERA as introduced would stifle innovation and harm patient care in the fields of diagnostic genetic testing and precision medicine.” He noted that the law should include “the requirement that natural phenomena, natural materials and abstract ideas be treated as prior art to all patent applications.”
The director of the U.S. Patent and Trademark Office (USPTO), however, pushed back, saying that would be “basically eliminating the patent system. He argued that while “natural phenomena” aren’t eligible for patents, as soon as that is applied by a human hand and human ingenuity to a practical application, such as diagnosing in a diagnostic kit a particular disease, that is human innovation and it should be eligible.”
Why other countries are becoming more attractive for those seeking patents
Other witnesses argued that U.S. patent law is out of step with that in other countries. That, they note, can incentivize researchers and entrepreneurs to take their work to China and other countries, leaving the U.S. behind in the global innovation race. Those in AI as well as medical diagnostics, biotech, 5G and more can benefit from the flaws in the current U.S. patent system by seeking patents in other countries. Limiting patentability can limit the incentive for innovation – especially for those who have money to invest in innovation.
Regardless of what happens with current U.S. patent law, one thing is certain. You should never try to navigate the system on your own. It’s crucial to get experienced legal guidance before seeking to get an innovation patented. This can help to save you unnecessary time, money and stress.
