Recently, we reported on the problems with a proposal from Senators Coons and Tillis to rewrite Section 101 of the Patent Act. Now, those senators have released a draft bill of changes they want to make. It’s not any better.

Section 101 prevents monopolies on basic research tools that nobody could have invented. That protects developers, start-ups, and makers of all kinds, especially in software-based fields. The proposal by Tillis and Coons will seriously weaken Section 101, leaving makers vulnerable to patent trolls, and other abusers of the patent system.

The draft legislation does remove a few aspects of the earlier proposal, but it has the exact same effect: it will erase more than a century of Section 101 case law—including the recent decision in Alice v. CLS Bank—and take away courts’ power to restore them.

The new draft bill relabels the existing law (subsection (a) below) and tacks a new subsection (b) after it. The new part is in bold below:

Section 101: (a) Whoever invents or discovers any useful process, machine, manufacture, or composition of matter, or any useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. (b) Eligibility under this section shall be determined only while considering the claimed invention as a whole, without discounting or disregarding any claim limitation.

Requiring eligibility to be determined based on “the claimed invention as a whole” is another way of saying: ignore the words the claim actually uses to describe the invention. The claim is the part of a patent that actually defines the “invention” that others are prevented from using. And it is the “claim as a whole” that’s considered the invention, not any particular element by itself.

But that doesn’t mean courts can’t consider the individual elements of a patent claim. In fact, it’s often critical that they do so. For example, the patent in Alice included a “data storage unit,” which the court considered “purely functional and generic,” and therefore rejected this element—because it didn’t have the “inventive concept” that Section 101 requires.

What Tillis and Coons are doing here essentially says: ignore the words the claim actually uses to describe the invention. This change will abrogate Alice and make it inapplicable in any future case.

That’s no accident. Alice has been so effective that patent trolls and other companies dependent on patent-licensing, rather than products, are pushing for Congress to undo what the Supreme Court has done.

Let's not let that happen. Protect basic research and stop patent abusers from tilting the system in their favor. E-mail your representatives in Congress and tell them to oppose the Tillis-Coons patent bill.

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