EFF Vows to Take Out Tillis’ Eligibility Bill

“Arguably, Tillis’ bill would simply ‘put an end to judicially created exceptions to patent eligibility by saying that the only exceptions to patent eligibility would now be found within the Patent Act.'”

Route US 101Last week, the Electronic Frontier Foundation (EFF) announced that it is launching a campaign against Senator Thom Tillis’ (R-NC) proposed “Patent Eligibility Restoration Act of 2022,” which would effectively abrogate the Supreme Court’s decisions in Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S.Ct. 2107 (2013) and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.Ct. 1289 (2012). The EFF’s post claimed the bill “would tear down some of the public’s only protections from the worst patent abuses.”

While many in the patent community welcomed Tillis’ renewed attempt at clarifying U.S. patent eligibility law, others said the bill would create more problems by failing to clearly define terms like “technological” and including language that would be problematic for software patents. US Inventor, despite its pleas in recent years for action on patent eligibility, came out against the bill, saying it will put the courts back in charge by leaving it up to them to interpret the current ambiguities.

For its part, EFF claimed the bill “would authorize patents on abstract ideas just for including computer jargon, and would even legalize the patenting of human genes.” The organization said that Alice Corp. v. CLS Bank led to hundreds of bad patents being thrown out in court and “many more bad patents have been abandoned because their owners know they can’t keep using them to threaten people.” The post also rehashed the Myriad case and claimed that Tillis’ bill would allow for the same “loophole” that led to the Supreme Court’s ruling striking down the Myriad patents. EFF is asking that people sign a petition to ask their senators to reject the bill.

The American Civil Liberties Union (ACLU) has also come out against Tillis’ bill, calling it “a gift to patent lawyers and predatory companies while risking the creation of a disturbing market for exclusive rights over material found in nature and abstract ideas.”

Arguably, Tillis’ bill would simply “put an end to judicially created exceptions to patent eligibility by saying that the only exceptions to patent eligibility would now be found within the Patent Act,” said IPWatchdog Founder and CEO Gene Quinn in an earlier article on the bill. But as noted earlier, not everyone is on board with the language of the bill and Tillis will likely once again face an uphill battle, not just from the usual organizations like EFF and the ACLU, but from within the IP community as well.


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Join the Discussion

10 comments so far.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    September 20, 2022 04:11 pm

    [E]liminate the unnecessary Section 101.

    Section 101 includes the utility requirement. If one eliminates section 101, then patents can issue on novel and non-obvious comic books. Is that what we want–the utility patent system being invoked for disputes about arts and letters?

  • [Avatar for C. W.]
    C. W.
    August 23, 2022 10:14 pm

    “by saying that the only exceptions to patent eligibility would now be found within the Patent Act”

    I see this as being right on-track because 101 is a referral statute, referring to conditions and requirements found elsewhere in the title. The text is clear.

    My perception on the Bill in its current form, is that it’s been thrown out there not as a final version, but as a beginning point for all those qualified to have input on how it ought be tweeked to make everybody happy.

    But in form, I think its right. 101 is a referral What you have to do now is write up those other new sections, like, a hypotetical 35 USC 104 relating to abstractness, and a 35 USC 105 relating to that which is naturally-occurring.

    You be the Lexicographers. Now is your chance. Use the Force, Luke. Give it all you got.

  • [Avatar for Night Writer]
    Night Writer
    August 23, 2022 10:51 am

    Where do I contribute to the EFF fund to “take the bill out”?

  • [Avatar for Night Writer]
    Night Writer
    August 23, 2022 10:49 am

    Mike >>>This bill is not good simply because the EFF says it is bad.

    Could not agree more. This is a terrible, terrible bill for eligibility of software and a great bill for the eligibility of bio claims. See the other thread.

  • [Avatar for Model 101]
    Model 101
    August 23, 2022 04:58 am

    What a joke!

    EFF…ACLU….Big Tech…tears on the pillow!

    Help us fellow infringers ….bad patent owners want their money.

    Us dirty thieves need to stick together.

    Truth… evidence…claim construction…facts…are coming to bite us.

    Oh noooo… government employees help us.

    Where do we send your check?

  • [Avatar for mike]
    August 23, 2022 12:22 am

    John White: Don’t be so quick. The EFF knows they have lost credibility in the public square, so here, they merely “oppose” the bill so others will think it must be a good bill. This bill is not good simply because the EFF says it is bad. The bill is not good because the bill itself is bad.

  • [Avatar for Josh Malone]
    Josh Malone
    August 22, 2022 05:38 pm

    Big tech is resorting to subterfuge, since their charm has worn thin. Through their proxies and lobbyists they are feigning opposition to legislation that makes it easier for them to steal technology. Amazon is using the same tactic with the SHOP SAFE Act, pretending to oppose it to bamboozle legislators into voting for more corporate favors. Tillis’ bill makes it easier for big tech to get patents while making it harder for their competitors with better ideas to enforce them.

  • [Avatar for concerned]
    August 22, 2022 04:53 pm

    I am told by one very intelligent attorney on this forum that novel and solves a problem is not patentable. So why would the EFF be scared by some computer jargon getting a patent when added to novel and solving a problem?

    Apparently, computer jargon added to a shoebox with a generic computer that cured cancer would still get no patent.

    EFF~ Don’t sweat the small stuff, case law has you covered regardless of some silly statute.

  • [Avatar for Pro Say]
    Pro Say
    August 22, 2022 04:46 pm

    The one and only way to restore desperately-needed patent eligibility to all areas of innovation . . . which would immediately restore America’s patent system to it’s formally world-leading status is to eliminate the unnecessary Section 101.

    Sections 102, 103, and 112 have always — and will always — prevent and kill anything and everything not worthy a U.S. Patent.

    Senator Tillis, once the patent-hating Leahy is gone, please submit this simple bill.


  • [Avatar for John White]
    John White
    August 22, 2022 03:50 pm

    If EFF is against it – I’m for it!