The Senate Judiciary Committee is expected to consider two bills on Thursday that would effectively overturn Supreme Court rulings against patents on broad software processes and human genes. Open source and internet freedom advocates are mobilizing and pushing back.
The Patent Eligibility Restoration Act (or PERA, S. 2140), sponsored by Senators Thom Tillis (R-NC) and Chris Coons (D-Del.), would amend U.S. law to “eliminate all judicial exceptions to patentability.” That would incorporate the 2014 ruling in which the Supreme Court held, with Justice Clarence Thomas writing, that simply performing an existing process on a computer does not make it a new, patentable invention. “The relevant question is whether the claims here do more than simply instruct a practitioner to implement the abstract idea of mediated settlement on a generic computer,” Thomas wrote. “They do not.”
That case was also based on Bilski vs Kapposa case in which a patent was proposed based solely on the concept of hedging against price fluctuations in commodity markets.
Open source groups go into hiding
Software and Internet advocates have taken notice. This week, the Linux Foundation, in partnership with the Cloud Native Computing Foundation (CNCF), announced an expanded partnership with Unified Patents aimed at defending open source software against what it boldly calls “non-practicing entities” (NPEs) but most people would call patent trolls. “As the risk and volume of frivolous lawsuits against open source projects increases, the need to provide accessible protections against NPEs has become critical,” the Linux Foundation writes.
In interviews with The Register, leaders at CNCF and Unified Patents described patent trolls as actively pursuing widely adopted technology, seeking settlements that exceed the costs of litigation. Nearly 98 percent of NPE claims are settled, according to Unified Patents, but NPE claims challenged before the U.S. Patent and Trademark Appeals Board lose 67 percent of the time.
Challenging patent claims, no matter how valid, could become more restrictive under the PREVAIL Act, the other bill being considered this week by the Senate Judiciary Committee. PREVAIL would, among other changes, limit patent challenge petitions to 14,000 words, hampering efforts to unmask complex patents. The act would also abolish clearance patents, which companies can use to resolve infringement claims before their own products are released.
Paving the way for genome patents
Another twist in PERA concerns genetic patents. The Supreme Court ruled in June 2013 that stretches of DNA that occur naturally in the genomes of humans or other organisms cannot themselves be patented. Myriad Genetics had previously been granted patents on genes linked to breast and ovarian cancer, BRCA1 and BRCA2, which were the target of a lawsuit led by the American Civil Liberties Union (ACLU). The resulting Supreme Court decision, also written by Thomas, held that information that occurs naturally in the human genome could not be the subject of a patent, even if the patent covered the process of isolating that information from the rest of the genome. As with broad software patents, PERA would ostensibly allow the patenting of isolated human genes and connections between those genes and diseases such as cancer.
The Electronic Frontier Foundation (EFF) describes PERA and PREVAIL as “a huge gift to patent trolls, a few tech companies that aggressively license patents, and patent lawyers. For everyone else, it will be a huge loss.” The EFF maintains a collection of stories from people who claim their jobs or hobbies were “saved by Alice” (the Supreme Court decision).
The Judiciary Committee will debate on Thursday and possibly amend or rewrite PREVAIL and PERA (i.e., markup). Tillis told Axios that the bills are needed for “biotech, some emerging industries (that) need help, or we’re just going to stifle innovation.” Most members of the Judiciary Committee have not voted on the bills. Pharmaceutical trade association PhRMA supports the bills, while numerous advocates of lower-cost drugs and biosimilars oppose them.