What is the Patent Eligibility Restoration Act of 2023?

Patent law doesn’t often change, so when a patent law is suggested to the Senate and/or the House of Representatives, it’s a significant deal. In June 2023, the Patent Eligibility Restoration Act of 2023 was introduced and suggested to the Senate. 

It was not passed or voted on, which is common. It will go through the Senate and the House of Representatives to be reviewed and edited by members of the Senate before receiving a date to be voted on. This process can take days, weeks, months, or even years. Since patent law is not the most pressing issue, it should be no surprise that this law hasn’t been recently voted on.

We want to discuss this law because of how it could change what can be patented if it’s passed without major changes to its rulings.

How Would this Act Be Passed?

To make it clear, there is no guarantee that this piece of legislation will ever be voted on. It can disappear on the floor if there is not enough noise made by constituents and/or their representatives. For it to be passed, it would have to be released by the committee in a likely edited state and put on the calendar to be voted on.

For the bill to be passed and proceed on to the House of Representatives, it requires a simple majority, which is currently 218 out of 435 votes in favor of its passing. If it passes in the House, it’ll move on to the Senate, where it needs at least 51 out of 100 votes to pass. 

Then after that, it needs to be approved by the President of the United States, who can veto or pass the bill. If the bill passes through both committees and is approved by the current acting President, it will become law.

What Does the Patent Eligibility Restoration Act Seek to Do?

To put it simply, this Act aims to make more things patentable. It seeks to do this by clarifying patent law and detailing in one place what can and can’t be patented. Like many bills, it aims to do multiple things at once.

Criteria to Become a Patent

The Act would establish three categories for a potential patent to fall under to be approved. These categories include:

• A mathematical formula: These formulas need to be used in processes, machines, manufacturing, or compositions. It would open up patents to include some mathematical formulas that were not patentable before.
• A mental process: A mental process is a process that could be performed in the human mind but can then be recited or performed by computers. At the time of writing, patent law used the mental process doctrine for these, and based on that, the United States Patent and Trademark Office (USPTO) enforces patents for these ideas. The Patent Eligibility Restoration Act of 2023 continues to include these processes.
• An unmodified human gene: To be unmodified, it must be a gene as the gene exists in the human body naturally. This does take into account mutations or variations some people have compared to others. Currently, it is only genes that do not exist in nature that can be patented, so this would expand what can be patented.

While this does attempt to further simplify patents, it doesn’t wholly succeed. These three criteria don’t include modified DNA that currently can be patented and used by businesses. There is even a name given to this type of patent: complementary DNA (cDNA). This means the bill has some wording that needs to be updated unless the House and Senate want to potentially stop cDNAs going forward.

Who Might This Bill Affect?

Currently, as it stands, it would not have an immediate effect. The patent process is not instantaneous, and mathematical formulas that were originally open-domain and/or unpatentable are not going to retroactively become something people can fight over. The same goes for unmodified DNA. 

This means that we have to wait for someone to create a strong patent using a mathematical formula or an unmodified human gene with long-standing implications. Any industry is capable of producing a relevant patent of a mathematical formula, but the medical industry is the most likely option for a new patent from an unmodified human gene.

Once this happens, we’ll learn how difficult or easy it is to avoid infringing on this type of patent. Right now, it’s too early to make proper estimations.

Contact the Patent Law Attorneys at ETB Law For Help

The Patent Eligibility Restoration Act of 2023 has not passed and may never pass. Whether it passes soon or never hits the Senate floor, our patent law attorneys at Emerson Thomson Bennett will be ready. We’re prepared to update the patents our clients currently have and will have so that they can account for any patent law changes that may come.

If you need help securing and maintaining patents, our patent law attorneys can help. Contact us today for more information and to schedule a consultation.