Patent Eligibility Bill May Clarify Law But Spur New Fights

Patent Litigation attorney Anthony Fuga was quoted in a Law360 story about the Patent Eligibility Restoration Act. The bill was introduced on Aug. 2 and aims to address the divisive issue of what can be patented. However, some say that the bill includes ambiguous language that could take years of litigation to sort out. For example, the bill says that patents can be obtained for an invention that would normally be an excluded cultural or artistic process if it is embodied in a machine, unless the machine is "merely storing and executing" the steps of the process. Mr. Fuga said that introduces additional ambiguity about when a machine like a computer is "merely" performing those tasks, and when an invention crosses the line from being "non-technological," and therefore ineligible for a patent, to "technological."

"Those are issues that are going to be litigated," he commented. "We're just going to be litigating them with a different backdrop of this litigation, instead of" current Supreme Court precedent.

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