A History of the Language of the Patent Eligibility Restoration Act (PERA)
Patent eligibility is determined by Section 101 of Title 35 of the United States Code, which currently reads:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Although the statute broadly indicates that “any” process, machine, manufacture, or composition of matter is eligible for patenting, certain judicially created exceptions have been established by the Supreme Court.
The scope of these judicial exceptions has expanded over the years, and the boundaries defining what may or may not be eligible for patenting has grown increasingly uncertain.
Congress is now taking action to clarify the law on subject matter patent eligibility.
The objective of PERA is to amend the law relating to patent subject matter eligibility, to establish that only certain restricted categories of subject matter (e.g. a mental process performed solely in the mind of a human being) are ineligible for patenting.
In April 2019, U.S. Senators Thom Tillis (R-NC) and Chris Coons (D-DE), Chair and Ranking Member of the Senate Judiciary Subcommittee on Intellectual Property, and Representatives Doug Collins (R-GA-9), Ranking Member of the House Judiciary Committee, Hank Johnson (D-GA-4), and Steve Stivers (R-OH-15) released a bipartisan, bicameral framework on Section 101 patent reform. The text of the April 2019 framework can be found here. [PDF]
The following month, in May 2019, a draft proposal to reform Section 101 was circulated by number of U.S. Senators and Representatives. This proposal included draft statutory language specifically intended for 35 U.S.C. §§ 100 and 101. The text of the May 2019 proposal can be found here. [PDF]
In June 2023, US Senators Chris Coons (D-DE) and Thom Tillis (R-NC) jointly introduced a draft of the Patent Eligibility Restoration Act of 2023 (S.2140) in the Senate. The text of this draft can be found here. [PDF]
In September 2024, U.S. Representatives Kevin Kiley (R-CA) and Scott Peters (D-CA) introduced the Patent Eligibility Restoration Act (PERA) in the House of Representatives.