Patent Eligibility Reform: Everyone Has an Opinion (and a "Love Actually" Relationship Ranking)

If you work anywhere near patent eligibility, the rhythm is familiar. Another year, another reform drumbeat. Draft language circulates on the Hill. Industry groups publish letters. Academics and the familiar faces hit the refrain. Pundits predict either an innovation renaissance or a patent apocalypse – or, if you consider me a pundit, a prediction that nothing will change.

Day to day, though, Section 101 still looks a lot like it has since Alice. Courts ask whether claims are "directed to" an abstract idea and then whether there's "something more." The results often, but not always, feel predictable after the fact.

What has changed is the widening gap between how the U.S. Patent and Trademark Office (USPTO) is trying to administer eligibility and how courts continue to enforce it.

The USPTO Is Trying (and That's Not Nothing)

In the last few years – and especially the past year – the USPTO has leaned into structure with example‑driven guidance and an emphasis on "technical solutions to technical problems," pushing examiners to explain why a claim is abstract instead of slapping on labels. The office's public materials and memos now stress basics such as analyzing the claim as a whole, distinguishing "recites" from "involves" and recognizing improvements to computer functionality as practical applications. See the USPTO's subject matter eligibility page and recent updates.

In prosecution, that's mattered. Applicants who tether claims to system architecture, defined data‑processing steps or model‑specific constraints are clearing Section 101 more often than they did just recently. Examiner reasoning is, on average, more disciplined. Dennis Crouch (at Patently-O) noted last week that the PTAB has "doubled its rate of reversing Section 101 rejections since Director John Squires took office," according to his analysis of ex parte appeal decisions.

Some will see this as progress, but it does not bind the courts.

Courts Are Still Playing a Different Game

District courts – and especially the Federal Circuit – remain deeply skeptical. If a claim recites a result without the "how," it's vulnerable, even if it breezed through the USPTO. Calling something "AI," "machine learning" or "automation" does not supply Alice's "something more." Recent Federal Circuit opinions – including machine‑learning cases such as Recentive Analytics, Inc. v. Fox Corp. (Fed. Cir. April 18, 2025) – underscore this point: A claim that reads like "apply technology X to get outcome Y" will struggle.

This disconnect isn't hypothetical. Patents that are defensible under current USPTO guidance are still getting knocked out under Section 101 in litigation. Citation to examiner examples likely won't save a patent owner in court.

Critics: This Isn't Just Lawyer Complaining

The criticism isn't confined to prosecutors and litigators. The Congressional Research Service (CRS) has repeatedly documented that a wide range of stakeholders view Alice/Mayo as vague, unpredictable and hard to administer, with doctrine bleeding into obviousness and enablement and disproportionately affecting diagnostics, biotech and software. See CRS, Patent Eligible Subject Matter Reform in the 116th Congress. The summary collects views across academics, industry, former USPTO officials and trade groups.

Legislative Reform: Momentum and Friction

Enter the Patent Eligibility Restoration Act of 2025 (PERA). The bill would narrow judge‑made exclusions and reset Section 101 around enumerated statutory carveouts, with new guardrails on superficial computerization and a "practically performed by a machine" test for certain processes. The text is live on Congress.gov (S.1546 (119th Cong.). The U.S. Senate Judiciary Subcommittee on Intellectual Property held a hearing on October 8, 2025. We covered it.

Supporters include former USPTO Directors Andrei Iancu and David Kappos. They argue PERA would restore predictability and investment, particularly in diagnostics and artificial intelligence (AI).

But the friction is real. Critics warn PERA could encourage low‑quality claims or revive business‑method fights; civil society groups such as the Electronic Frontier Foundation (EFF) oppose both PERA and companion bills (also here and here). Medical groups have also flagged concerns about gene‑related eligibility. See this College of American Pathologists' post‑hearing alert.

Bottom line: There appears to be renewed energy, but also real disagreement about scope. And even if Congress acts, courts will need to interpret whatever emerges.

Defenders of the Status Quo

Plenty of serious voices argue Section 101 plays a necessary gatekeeping role. They see the doctrine filtering out overbroad claims – especially in business methods – that would chill competition, and they prefer case‑by‑case adjudication in fast‑moving fields. Those arguments show up in legislative testimony, policy letters and CRS summaries, and they carry weight in the policy debate even if they don't dominate the chatter that makes our daily feeds.

So, What Should Practitioners Actually Do?

The practical advice hasn't changed:

• Draft for courts, not just examiners. If a judge would question whether the "how" is in the claim, considering revising the claim language.
• Be disciplined with functional language. Results are fine; results without mechanisms are not.
• Use USPTO guidance strategically. It's a prosecution tool; it is probably not a litigation shield.
• Assume eligibility will be litigated. If a patent's value depends on surviving a Section 101 challenge, that should be considered in the drafting.

Eligibility law may evolve, and reform may arrive. Or it might not. In the meantime, Section 101 continues to reward the same things it has for years: technical specificity, careful drafting and a clear explanation of "how" the claim language provides for a technical solution. That hasn't changed.

A "Love Actually" Relationship Ranking

I'm not ready to give up on the holidays, so here's a "Love Actually" power ranking:

1. Billy Mack & Joe. Rock star cynic learns he actually likes his long-suffering manager more than fame. This is the best relationship, and I am not sure it's close.
2. John & Judy. The stand-ins somehow model the healthiest relationship in the movie.
3. Daniel & Sam (and Joanna). A grief story leads to an airport sprint, which always gets me. It's sincere and without a glaring flaw. This is rare in the movie.
4. David & Natalie. Probably not HR's top relationship.
5. Jamie & Aurélia. Jamie proposes before they even have a full conversation in a common language – probably not the recommended approach.
6. Sarah & Karl. Two years, seven months, three days and then Karl disappears at the first sign of real life. See ya, tan Karl.
7. Karen, Harry & Mia. The necklace/Joni Mitchell CD scene is brutal. Harry, what're you doing, man?
8. Colin & The Wisconsin Ladies. A teenage fantasy snuck into a Christmas movie, complete with beer and a foreign land (Milwaukee). This is very unserious but somehow not the worst.
9. Juliet, Mark & Peter. The cue card scene is rom-com famous, yet morally bankrupt. Mark declares his love to Juliet, his best friend's wife, and she appears, in that moment, receptive. On what basis – have they ever even had a real conversation, aside from Juliet offering banoffee pie as a peace offering? The whole thing is absurd. What is supposed to be happening here? Mark really let himself down.

Am I wrong on patent reform? Do I misunderstand Mark and Juliet? Send all comments to anthony.fuga@hklaw.com.