The Senate Judiciary Committee is set to consider two bills on Thursday that could effectively overturn past Supreme Court rulings against the patenting of broad software processes and human genes. Open source and internet freedom advocates are rallying in opposition to these legislative moves.
The Patent Eligibility Restoration Act (PERA, S. 2140) is among the proposed legislations. Sponsored by Senators Thom Tillis (R-NC) and Chris Coons (D-DE), PERA aims to remove all judicial exceptions to patent eligibility. This would impact the Supreme Court’s 2014 ruling which stated that simply performing an existing process on a computer is not a new, patentable invention. The ruling, written by Justice Clarence Thomas, underscored that the claims did not extend beyond merely instructing the practitioner to implement an abstract idea on a generic computer.
Open source groups have expressed significant concern. The Linux Foundation, in collaboration with the Cloud Native Computing Foundation, announced an expanded partnership with Unified Patents. This coalition is intended to protect open source software from what they call “non-practicing entities” (NPEs), commonly known as patent trolls, which frequently target widely-used technologies for settlements rather than trials.
The other bill under debate, the PREVAIL Act, could make it more challenging to contest patent claims. This Act proposes to limit patent challenge petitions to 14,000 words and eliminate clearance patents, complicating efforts to dispute complex patents and clear potential infringement claims preemptively.
PERA also encompasses genetic patents. The proposed legislation could reverse the Supreme Court’s 2013 decision that naturally occurring DNA cannot be patented. Myriad Genetics had previously held patents on genes related to breast and ovarian cancer, which were invalidated by the court. The ruling, also penned by Thomas, found that isolating naturally occurring DNA sequences did not transform them into patentable inventions. PERA would seemingly permit patents on isolated human genes and their connections to diseases like cancer.
The Electronic Frontier Foundation (EFF) has labeled the PERA and PREVAIL bills as beneficial primarily to patent trolls, aggressive licensors, and patent lawyers, while being a detriment to the broader public. The Judiciary Committee will debate and possibly amend these bills on Thursday. Senator Tillis has indicated that the legislation is critical for the biotechnology sector and other emerging fields, arguing that without such relief, innovation could be stifled. While pharmaceutical trade group PhRMA supports the bills, various advocates for lower-cost drugs and biosimilars are in opposition.
For further details, please refer to the full article on Ars Technica.