Congress Considers a Patent Eligibility OverhaulFebruary 27, 2019

Some members of Congress have met at least twice to discuss the current difficulties and frustrations with patent eligibility under Section 101 of the patent statutes. While these meetings have been closed-door, attorneys and others representing businesses and industries, have attended. These meetings, in December of 2018 and February of 2019, have been initialed by Senators Chris Coons, D-Del., and Thom Tillis, R-N.C. The impetus for the meetings was, at least in part, recent opinions by judges on the Court of Appeals for the Federal Circuit calling for Congress to step in and provide clarity to the patent eligibility guidelines that courts and the Patent Office have been struggling with for several years, particularly since the 2014 Supreme Court decision in Alice v. CLS Bank.

Senator Coons acknowledged that when Federal Circuit judges are unable to figure out eligibility, that is an indication that there is a real problem. He also noted that Congress needs to clarify what inventions are eligible for patent protection. 

The recent work of Congress in modifying the long-standing copyright laws with the Music Modernization Act of 2018, which passed unanimously in both the House and the Senate, provides hope that Congress can also reach an agreement on this important issue in patent law. However, changing the law will not be a simple process. While improved predictability is a simple goal, some industries want change and other industries do not think change is needed. For example, some industries, such as pharmaceutical, want a stronger patent system, while other industries, such as technology, like the current status which allows challenges to patent validity based on ineligible subject matter, since they often are defendants in patent infringement lawsuits. 

A Senate sub-committee has been formed to work on this issue. Certainly, more debate will take place in the coming months. The uncertainty is how long it might take for any patent reform, and what the end result will look like.

Kirk Hartung is Chair of the Mechanical Patent Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit or contact Kirk directly via email at

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