In Part 1 of my discussion of the Patent Eligibility Restoration Act (“PERA”) of 2023, I covered the substantive changes that the PERA of 2023 made to its predecessor, the PERA of 2022; how several of the changes in the 2023 legislation to the proposed updated version of Section 101 of the Patent Act directly addressed criticisms of statutory language originally proposed in the PERA of 2022; and why the changes result in a clearer bill that even further enhances patent eligibility.
This Part 2 now address whether the PERA of 2023 can be still further improved. For the reasons discussed in my linked IPWatchdog article, the answer is "yes." Critical language, presently recited only in the preamble of this legislation, should be copied directly into the text of Section 101 itself.
To further strengthen Section 101, Congress should copy the text of the Section 2 Declaration into Section 101 itself and add therein a statement of intent to overrule judicial precedent inconsistent with amended Section 101. This would more strongly align the statutory text with legislative intent and would further reduce the possibility of a judicial interpretation at odds with the Section 2 Declaration.
Congress ought to therefore consider further amending Section 101 to insert a new subsection (a) stating “All judicial exceptions to patent eligibility are eliminated, and to the extent judicial precedent invoked patent eligibility exceptions not enumerated in this Section, all such judicial precedent is hereby expressly overruled,” and to renumber the ensuing subsections accordingly.
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