In a report released on 12 May, AIPLA said that recent US Supreme Court decisions surrounding the law have “created significant uncertainty about what is eligible for patenting in the US”.
“AIPLA has concluded that legislation is needed to ensure the application of clear, unmalleable rules of patent eligibility with very limited statutory exceptions to provide the needed certainty in the law that is essential for encouraging investment in America’s innovation economy.”
AIPLA said that the federal circuit, district courts and the US Patent and Trademark Office (USPTO) are struggling to find a “principled formula” to guide their decision-making.
This uncertainty has “weakened the US patent system and discouraged investments ... the EU and China are granting patents on the exact same inventions and discoveries”.
“As a result, innovators are being ‘driven overseas to create and commercialise nee technologies’ where the scope of patent protection is more certain.”
In a recent interview, AIPLA president Mark Whitaker said: “One week we’ll see a decision going one way, and then the next week a decision will go the other.”
Whitaker added that the courts and the involved parties are making up judicial exceptions.
“There is a lack of direction and it’s up to Congress to bring us reconciliation. The Alice decision moved away from a body of case law that had been developed.”
Last month, the American Bar Association called for patent reform, saying that it would support an amendment to Section 101.
In its letter, addressed to Michelle Lee, director of the USPTO, it said the amendment 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 idea".