Re(de)fining Patent Eligibility

The patent system is at the heart of America’s innovation scene, serving as the lifeline for America’s status as an industrial titan as it seeks to inspire inventors worldwide to innovate and discover. The confines of patent-eligible subject matter were set out by Congress through the power vested by the Constitution, and these boundaries have been re(de)fined as the Supreme Court has carved out exceptions to these standards including: laws of nature, abstract ideas, and natural phenomena being excluded from patentability. In response to criticisms of legal uncertainty surrounding patent-eligibility under the current regime, two senators have introduced The Patent Eligibility Restoration Act of 2023 (PERA 2023). With bipartisan support, the Act has been introduced to reform the patent system most notably through abrogation of the judicially-created exceptions, replacing them with an explicitly enumerated list of what categories of invention would be ineligible for patent-protection. While the proposed legislation attempts to provide some clarity to the patent-eligibility jurisprudence and bring the patent system closer to its intended purpose, Congress must take care to ensure that they are not overstepping any possible constitutional limits, and they must carefully navigate possible interpretational difficulties to ensure the legislation has its intended practical effect. This Note explores the constitutionality of the judicially-created exceptions and how they may affect the reach of the legislation, as well as possible interpretational issues of the proposed legislation that may be guided by European patent jurisprudence, to discuss the efficacy of the bill in achieving its ultimate goal of promoting innovation in America.