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New Proposed 101 Legislation

Jim Ruttler, Patent Attorney

Posted Friday, February 10, 2017 by Jim Ruttler

Anyone following patent law over the past few years is aware of the uncertainty with respect to patent eligibility. The statute is clear that all useful machines, compositions, and processes are eligible, but the Courts have mucked it all up with judicially created exceptions to the rule. It has gotten so bad that it is difficult to know where the lines is for patent eligibility for some life science and computer program inventions.

The IPO has set forth the following proposed claim amendment seeking to eliminate the judicial exceptions once and for all and reset the law on patent eligibility. The brackets indicate removed terms from the present statute in (a). The sections (b) and (c) are completely new.

101 Inventions patentable.

101(a) ELIGIBLE SUBJECT MATTER: Whoever invents or discovers, and claims as an invention, any [[new and]] useful process, machine, manufacture, [[or]] composition of matter, or any [[new and]] useful improvement thereto, shall be entitled to [[thereof, may obtain]] a patent for a claimed invention thereof [[therefor]], subject only to the exceptions, conditions, and requirements set forth in this Title [[of this title]].

101(b) SOLE EXCEPTION TO SUBJECT MATTER ELIGIBILITY: A claimed invention is ineligible under subsection (a) if and only if the claimed invention as a whole, as understood by a person having ordinary skill in the art to which the claimed invention pertains, exists in nature independently of and prior to any human activity, or exists solely in the human mind.

101(c) SOLE ELIGIBILITY STANDARD: The eligibility of a claimed invention under subsections (a) and (b) shall be determined without regard as to the requirements or conditions of sections 102, 103, and 112 of this Title, the manner in which the claimed invention was made or discovered, or the claimed invention’s inventive concept.

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