On Wednesday, Senators Tillis and Coons, along with Reps. Collins, Johnson and Stivers released a draft, bipartisan bill to amend ss.100 and 101 to void the “judicial exceptions” to patent eligibility. Section 112(f) was also amended to tighten up the language (“for a combination” was eliminated).
On April 18th, I posted the “Draft Outline of Section 101 Reform.” I noted that the draft attempted to define “exclusive categories of statutory subject matter which alone should not be eligible for patent protection.” However, the draft’s proposed categories included “products that exist solely and exclusively in nature”- but did not mention claims reciting naturally-occurring processes, such as diagnostic tests. This was especially troubling since the draft outline would blacklist “mental activities” and the courts and the PTO routinely disregard steps in method claims that involve thinking, such as the mental activity of the actor who interprets the results of the test as indicative of a medical condition.
The “draft bill text” rejects this definitional attempt to define patent-ineligible subject matter. It amends s. 101 to eliminate the requirement that the patent eligible invention or discovery be “new,” and adds section 100(f) that states: “The term ‘useful’ means any invention or discovery that provides specific and practical utility in any field of technology through human intervention.”