In a letter addressed to Michelle Lee, director of the US Patent and Trademark Office (USPTO), ABA said it supports, in principle, an amendment that would clarify the section.
The letter served as a supplement to a previous response that the ABA’s IP law section sent to the USPTO in reply to the agency’s invitation for written comments on patent subject matter eligibility.
Any amendment to Section 101, which governs subject matter eligibility, should “clarify that useful inventions as defined by each and every limitation of the claims of a patent satisfy the patent eligibility requirements of Section 101 so long as the claims do not preempt the use by others of all practical applications of laws of nature, natural phenomena or abstract ideas."
The amendment should also "clarify that the determination of patent eligibility under Section 101 is independent of patentability under other sections of the patent statute”.
The ABA also recommended replacing the current statutory language of Section 101 in its entirety.
The Supreme Court has issued a number of decisions in recent years, including in Alice Corp v CLS Bank, that have tweaked subject matter eligibility to clarify the law of nature, natural phenomena and abstract idea bans. Many argue these decisions only muddied the waters further.
Reform of Section 101 is likely to gain attention in Washington DC, according to a highly placed source, who said congressman Bob Goodlatte and Darrell Issa have placed it high on their agenda.
“These are issues with bilateral support for them, meaning that Democrats and Republicans can get on the same page, so I do have hope that there will be some movement, hopefully by later this year,” the source added.
Goodlatte, who is chair of the House judiciary committee, said earlier this year that significant patent reform would be put forward, “freeing small business to flourish, unleash innovation, and create new jobs for Americans”.