By Kevin E. Noonan --
Senator Thom Tillis (R-NC) has been busy letter writing lately (see "Sen. Tillis Sends Letter to President Regarding Next USPTO Director"), and spent a good portion of 2019 being busy trying to convince his colleagues in Congress to address the morass over subject matter eligibility that has arisen in the wake of the Supreme Court's Alice Corp. v. CLS Bank International and Mayo Collaborative Services Inc. v. Prometheus Laboratories, Inc. decisions (as well as Association for Molecular Pathology v. Myriad Genetics, Inc.) (see "The Zombie Apocalypse of Patent Eligibility Reform and a Possible Escape Route").
Last week, Senator Tillis' latest literary foray took the form of a letter to the Hon. Drew Hirschfeld, current Commissioner of Patents and Acting Director of the U.S. Patent and Trademark Office. In it, the Senator asks the USPTO to "publish a request for information on the current state of patent eligibility jurisprudence in the United States, evaluate the responses, and provide us with a detailed summary of your finding, particularly with regard to "how the current jurisprudence has adversely impacted investment and innovation in critical technologies like quantum computing, artificial intelligence, precision medicine, diagnostic methods, and pharmaceutical treatments." The letter illustrates and justifies the request by reciting the "lack of consistency and clarity in our nation's patent eligibility laws." These circumstances have "had a dramatic negative impact on investment, research, and innovation," not only discouraged investment in critical emerging technologies, but also led the courts to foreclose protection entirely for certain important inventions in the diagnostics, biopharmaceutical, and life sciences industries." Of course, the letter references the struggle to "contain and treat the worst global pandemic in more than one hundred years" and professes astonishment that current jurisprudence "makes it virtually impossible to obtain many patents in the diagnostic methods and precision medicine sectors." The letter asks for the report to be delivered to Congress no later than March 2022.
Sen. Tillis was joined in this letter by Senator Chris Coons (D-DE), who was his partner in earlier efforts in Congress (see "Senators Tillis and Coons Release Statement on Recent Patent Reform Hearings"), as well as Senators Tom Cotton (R-AR) and Mazie Hirono (D-HI), illustrating bipartisan support for Sen. Tillis' request.
Of course, while appropriate for Congress to ask these questions of the (acting) head of the administrative agency charged with executing the patent laws, the courts (specifically the Federal Circuit) have made it clear that the USPTO's views are not binding on their interpretation of subject matter eligibility standards (see "Cleveland Clinic Foundation v. True Health Diagnostics LLC"). Nevertheless, the bipartisan nature of the letter and the identities of the signatories suggests Congressional recognition of the problem that current jurisprudence has created over subject matter eligibility and continuing efforts in Congress to address them. While legislation is unlikely this year or perhaps even in this Congress, it remains the case that "a small group of thoughtful, committed, citizens can change the world" because "it is the only thing that ever has." With any luck, that sentiment applies even more strongly when those citizens are Senators.
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