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The Supreme Court’s patent law cases over the last decades have achieved significant majorities, if not unanimity. As Paul Conover and I argued a decade ago, this may suggest that patent law is a source of bipartisan agreement.
This is further evidenced by President Biden’s solicitor general urging the Supreme Court to take the American Axle case last year. The concerns expressed in the SG’s amicus brief are consistent with the views expressed by former USPTO director Andrei Iancu in the Senate’s hearing on PERA.
Proposals for updates to the law of patent eligibility (or “101”) may have achieved similar agreement between parties. The proposed law PERA was introduced by senators of both parties last year, and recently representatives from both parties also introduced it in the House. The senators are from the east coast, and the representatives are from the west coast, so support for these proposed 101 reforms appears to cross both political and geographic boundaries.
As PERA and the PREVAIL Act both move forward, the process will show whether support for each is bipartisan. PERA and the PREVAIL Act are both scheduled for votes in the Senate Judiciary Committee on September 19, 2024, and both bills could proceed to “markup” in October (when the House and Senate proponents will negotiate any differences between their proposed bills).
Those interested in patents should watch both House and Senate for further developments, as legislators seek to advance these laws during campaign season, despite gridlock in other areas.
