The Senate Judiciary Committee held its first of three hearings today, June 4, 2019, on proposed amendments to sections 101 and 112 of the patent code. The proposed change would allow patentability for “any invention or discovery that provides specific and practical utility in any field of technology through human intervention.” And it would reverse the current judicial trend limiting the scope of patentable subject matter, specifically stating that “[n]o implicit or other judicially created exceptions to subject matter eligibility, including ‘abstract ideas,’ ‘laws of nature,’ or ‘natural phenomena,’ shall be used to determine patent eligibility under section 101, and all cases establishing or interpreting those exceptions to eligibility are hereby abrogated.”
A copy of the proposed changes to the law are available here.
Over three days, the Committee will hear testimony from 45 witnesses. This is high-level summary of today’s testimony and arguments on the proposed language and policy.
With regard to the text of the proposal, witnesses tended to focus attention on the term “field of technology” in the amendments, noting that the statutory construction on this term will greatly determine how the changes would affect the patent system. Witnesses suggested that any proposed bill should include more language to establish a high degree of clarity defining the scope of patentable subject matter. And it was noted that the proposed text removes any requirement for an invention to be “new” from section 101, so that this requirement can be properly considered in other sections of the code.
From a policy perspective, many witnesses argued for the proposed text. They noted that abrogating court decisions on patentable subject matter will promote innovation by reducing uncertainty because the existing framework is unpredictable with courts refusing to provide sufficient clarity on their previous decisions. And generally, they argued for a stronger patent system, so inventors and investors will develop technology in the United States rather than in foreign jurisdictions.
Fewer witnesses argued against the proposed amendments. They focused primarily on patent trolls and high patent litigation costs, noting that the current post-Alice 101 law allows for many patents to be found invalid as a matter of law at a very early stage in litigation. A broader scope of eligible subject matter would generally increase the cost of finding a patent invalid in a lawsuit.
The proposed amendment to section 112 would affect the scope of functional claim language. Here, there was less agreement among the witnesses. Chairman Tillis summed it up saying, “When I look around the table, there are people who generally agree with the direction of the legislation but then when we get into the finer points, particularly on the 112 proposal, there’s one person speaking in the affirmative for change, then there’s somebody else shaking their head not sure. I think what that means is that we have more work to do.”
Video of the hearing along with a complete list of witnesses and their prepared remarks can be found here.