Tillis-Coons Patent Law Changes to Unravel Years of Case Law?

Senator Thom Tillis (R-NC) and Chris Coons (D-DE) released draft language of a proposed bill that intends to upend years of established case law and standards under the patent system under the guise of reforming the eligibility requirements of patentable subject mater under 35 USC 101.

Currently 35 USC 101 reads: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”

The proposed law would undermine numerous important patent law Supreme Court decisions including Mayo v. Prometheus and Alice v. CLS Bank. These and other important decisions have actually promoted innovation by ensuring that certain minimum standards are met rather than the lower standard for patentability proposed by Tillis-Coons that would remove the statutory requirement for novelty and utility. Rewriting Section 101 would alter significant chunks of existing U.S. patent law and would potentially allow patents on all sorts of pre-existing technology.

The purpose of Section 101 is to define what qualifies as patentable subject matter. Section 101 has successfully been used to invalidate overbroad software patents, and limit subject matter to a new and useful process, manufacture, composition of matter or machine. Allowing these changes would strengthen the rights of already existing patent holders with poorly written patents against challenges such as novelty and utility. Removing the novelty and utility standards on patentability would create significant uncertainty for investors making it more difficult for small inventors to bring a new product to market with actual patent protection.