Urge Congress to Keep the Established and Efficiently Working Sections 100 and 112 of the U.S. Patent Act

Now that the Senate Subcommittee on Intellectual Property has concluded its hearings on patent eligibility reform, it appears that the draft changes to Sections 100 and 112 are the last great danger in the overall patent eligibility debate and we must not let our guard down. A new version of the bill is due out sometime after the July 4 holiday; please send the following text with any of your edits to [email protected].

Honorable Senators and Representatives Coons, Tillis, Collins, Johnson, and Stivers:

I would like to thank you for your respectable efforts in resolving the patent eligibility mayhem. Your changes to Section 101 bring long awaited hope for U.S. inventors. The draft changes to Sections 100 and 112, however, remain very concerning, as they can be used by the courts, strategic infringers, and other bad actors to undermine the patent system and U.S. innovation.

U.S. inventors live in a world in which the courts have proven over at least a decade that they cannot be trusted with interpreting the patent law as written. The Supreme Court outright ignored the law as explicitly written and created its own law illegally via their “judicial exceptions” to patent eligibility. I wish we lived in a more perfect world, but given the courts’ long, definitively-proven unwillingness and inability to interpret the patent law as written, the only rational solution is to not allow the courts the flexibility to cause further damage to the patent system by codifying the draft changes to Sections 100 and 112.

You will notice that many of the points made by IP stakeholders and writers of articles on patent eligibility reform are driven by a genuine history-proven fear of the courts’ unwillingness and inability to interpret patent laws as written. Please ponder on this carefully, as you cannot ignore the courts’ proven history that is certain to repeat itself. In the current attempt to reform patent eligibility, you not only must include carefully written language as you would want it to be interpreted, but you must also account for the “courts’ damage factor” because whatever language you think is well-written, the courts’ will interpret it in flawed or outright wrong ways. The proof is that there is nothing wrong with the current Section 101, which worked fine for decades until the Supreme Court created the illegal “judicial exceptions”.

Similarly, there is nothing wrong with Sections 100 and 112, which also has worked fine for decades. Therefore, the current Sections 100 and 112 must be left alone and the draft changes to Sections 100 and 112 must be removed. The courts created the incredible damage to the patent system in Section 101 and this will always be remembered as the courts’ liability. If you change the current, long-established, efficiently working Sections 100 and 112, this will create an incredible damage to the patent system similar to the courts’ damage in Section 101, and this will always be remembered as your liability.

If anything, it is wise to think of ways to make the language of the current Sections 100 and 112 more flexible for U.S. inventors to incentivize U.S. inventors. I realize that this suggestion may be too far-fetched for some, so I urge you to simply keep the current language of Sections 100 and 112 and remove the draft proposed changes to those sections. Changing these sections would only provide fuel to the courts, strategic infringers, and other bad actors to burn down the patent system again, as they have done in the past with Section 101.

When you look at the big picture from a long-term perspective, the matter before you is actually simple:

1. To completely incentivize U.S. inventors in a global race—indeed a war—for global dominance in innovation, or
2. to get distracted by petty details of the draft changes to Sections 100 and 112 that would allow the courts, strategic infringers, and other bad actors to recreate the very patent eligibility problem you are trying to solve. You have already made a respectable first step in incentivizing U.S. inventors with the changes to Section 101 and I urge you not to ruin or even nullify it via the draft changes to Sections 100 and 112.

Mayo, Alice, and the America Invents Act (AIA) have been tried and failed. Remember where China used to be relative to the U.S. in innovation ten years ago, before Mayo, Alice, and the AIA came into being. China was not even on the radar as an innovation powerhouse. Today, after all the damage done by Mayo, Alice, and the AIA, China is neck-and-neck with and even ahead of the U.S. in critical fields like artificial intelligence, biotechnology, medical innovation, and others. One who does not see the trend is blind or influenced by special interests. A partial or even good enough reform will not reverse this trend or even slightly alter it. The time for partial measures has long passed. If you do not completely incentivize U.S. inventors like inventors were incentivized before Mayo, Alice, and the AIA, China will far outpace the U.S. in critical innovation fields in the next ten years beyond a point of return.

Indeed, China recently revealed the national IP strategy in which China fully supports Chinese inventors by implementing the U.S. patent polices before Mayo, Alice, and the AIA. It is amazing that it is obvious to China that the U.S. patent polices before Mayo, Alice, and the AIA are the way to global innovation dominance, but the same is not obvious to the U.S. It is also amazing to see that China learned from the U.S. past, but the U.S. did not learn from its own past.

Gentlemen, you carry a great responsibility for ensuring a continued U.S. dominance in the world, which directly depends on the U.S. dominance in innovation. Indeed, you will be remembered as saviors of U.S. innovation if you adopt the changes to Section 101 and remove the draft changes to the long-established and efficiently working Sections 100 and 112, which will prevent the courts, strategic infringers, and other bad actors to further damage U.S. innovation. If your goal is to fully incentivize U.S. innovation, just think as a U.S. inventor and ask yourselves what would incentivize and not stifle your innovation? You will quickly realize that adopting the changes to Section 101 and removing the draft changes to Sections 100 and 112 is the answer.

U.S. inventors are the very people who carry the torch of U.S. innovation and it is plainly wise to incentivize them. Many inventors have already given up on the U.S. patent system and have quit inventing. Your patent eligibility reform provides a long-awaited hope for the remaining U.S. inventors who look to you with great expectations.