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(Reuters) – The U.S. Patent and Trademark Office is asking for public input about the effects of varying precedent around patent eligibility on critical industries, according to a Thursday notice to be published Friday.
The notice requests comment on how the “current state of patent eligibility jurisprudence” affects specific fields including quantum computing, artificial intelligence and pharmaceutical treatments, as well as the U.S. economy as a whole.
The request is in response to a March letter from a bipartisan group of senators that asked for more information about the “dramatic negative effect” that the “lack of consistency and clarity in our nation’s patent eligibility laws” has had on investment, research and innovation.
The USPTO declined to comment.
Inventions covering abstract ideas, natural phenomena and laws of nature can’t be patented under Section 101 of the Patent Act. The U.S. Supreme Court last addressed Section 101 patent eligibility in Alice Corp v. CLS Bank International, a landmark 2014 decision that helped establish a two-part test to determine whether a patent covers an abstract idea.
Critics say that case and its descendants have led to unpredictable eligibility decisions and the cancellation of valid patents. The 2019 case American Axle v. Neapco left the patent-focused U.S. Court of Appeals for the Federal Circuit “bitterly divided” on the issue, in one of its judge’s own words, and the Supreme Court is currently deciding whether to hear it.
The bipartisan March letter — signed by Republican U.S. Senators Thom Tillis of North Carolina and Tom Cotton of Arkansas and Democratic Senators Mazie Hirono of Hawaii and Chris Coons of Delaware — said it was “past time that Congress act to address this issue,” and requested a PTO report to help decide what action to take.
Comments will be due Sept. 7.
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