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AIPLA Announces Legislative Proposal on Patent Eligibility

The American Intellectual Property Law Association on May 12, 2017, announced its Legislative Proposal and Report for revising 35 U.S.C. §101 to address the confusion and uncertainty caused by Supreme Court rules on patent ineligibility.  

The AIPLA proposal preserves most of the language of the current Section 101, but replaces the judicial exceptions to eligibility with a new framework that uses clearly defined statutory exceptions. It is intended to provide a clear and objective test for eligibility and to expressly reaffirm the gatekeeping conditions of patentability in Sections 102, 103, and 112.

The AIPLA Board of Directors approved the following resolution:

RESOLVED that the American Intellectual Property Law Association (AIPLA) favors, in principle, amending 35 U.S.C. § 101 to recite the following:

35 U.S.C. § 101—Inventions Patentable

(a) Eligible Subject Matter.—Whoever invents or discovers any useful process, machine, manufacture, composition of matter, or any useful improvement thereof, shall be entitled to a patent therefor, subject only to the conditions and requirements set forth in this title.

(b) Sole Exceptions to Subject Matter Eligibility.—A claimed invention is ineligible under subsection (a) only if the claimed invention as a whole exists in nature independent of and prior to any human activity, or can be performed solely in the human mind.

(c) Sole Eligibility Standard.—The eligibility of a claimed invention under subsections (a) and (b) shall be determined without regard to the requirements or conditions of sections 102, 103, and 112 of this title, the manner in which the claimed invention was made or discovered, or whether the claimed invention includes an inventive concept.  

The Legislative Proposal derives from the work of the AIPLA Patentable Eligible Subject Matter Task Force, which spent over two years considering the current state of the law and a wide variety of alternative solutions. It concluded that the Supreme Court can no longer be expected to remedy the confusion and uncertainty that its rulings have created among the courts, the USPTO, and inventors. 

To read the AIPLA Legislative Proposal and Report on Patent Eligible Subject Matter, click here​