Smoke curls from a Capitol Hill cigar. Senators Tillis and Coons think they’ve fixed patent eligibility with PERA 2025.
Wrong.
Professors Jeffrey Lefstin and Peter Menell – UC Hastings and Berkeley heavyweights – aren’t buying it. They’ve dropped a guest post that’s equal parts scalpel and sledgehammer, zeroing in on the Patent Eligibility Reform Act’s half-baked exclusions. And they’re right. This bill, reintroduced in May 2025, tweaks one measly thing: isolated human genes stay out unless purified or useful. Cute. But as they say, that’s ‘essentially illusory’ since real claims always add something.
PERA wants a clean slate for Section 101. Noble goal. Ditch the Mayo/Alice mess – that Supreme Court trainwreck built on shaky history and economic guesswork. Remember? Federal Circuit twists itself into knots over ‘abstract ideas,’ killing data-processing patents without a why. Biomed? Diagnostics get the boot; treatments skate free. No rationale. Just vibes.
Why PERA’s Exclusions Are Laughably Narrow
Here’s the kicker. PERA bars ‘substantially economic, financial, business’ processes – vague as fog – then loopholes it wide open. Exempt anything needing a ‘machine or manufacture.’ Pencil counts. Paper too. Boom: eligible. Left out? Pure mental steps. Dance moves. That’s it. Professors nail it: PERA excludes jack from the patent system.
Biomed genes? Redundant carve-out, ignores research-blocking fears. No fix there.
“PERA would meaningfully exclude from the patent system only mental processes, and pure motions of the human body such as dance or sport moves.”
Oof. That’s the professors, dry as bone, exposing the bill’s impotence.
They agree on ambition: Untangle eligibility from novelty, obviousness, enablement – back to 1952 Act roots. But execution? Flops.
Professors’ Fix: Utility Over Metaphysics
So they rewrite. Categorical exclusions, sure. But pegged to utility, not slippery ‘nature.’
No patents on:
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Math formulas standing alone.
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‘Nontechnological utility’ processes: economic, business, social, artistic. Computers doing same? Out.
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Unmodified natural stuff, genes included.
Exceptions? Isolated, purified, altered materials. Or useful inventions.
Bonus: Research exemption for natural-material patents. No infringement for science, med, industrial research. Anyone claims it, business or not.
Smarter. Rooted in existing law. Avoids PERA’s artifact trap – because utility asks: What’s this do? Not: Pencil?
And that research shield? Addresses the elephant: Gene patents choking upstream innovation. PERA ignores it. These guys don’t.
Does PERA Echo Past Patent Flops?
My hot take – and it’s fresh: This reeks of 1990s business-method patent hysteria, pre-Alice. Remember State Street? Flooded PTO with click-to-buy nonsense. Congress panicked, did nothing coherent. Result? Supreme Court overreach. PERA 2025 risks the sequel: Vague exclusions spawn new Federal Circuit word salads. Professors’ utility test? Predicts cleaner lines – or at least fewer pretzels. Bold call: Without it, PERA dies in committee again, like prior versions amid ‘pushback.’
Current regime’s no picnic. Alice/Mayo misunderstood 1952 Act, history. Economic hunches over empirics. FedCir’s ‘integration’ tests? Voodoo for outsiders.
But PERA’s hype – ‘reform!’ – masks sloppy drafting. Corporate PR spin calls it progress. Nah. It’s lipstick on a doctrine pig.
Professors push utility because it’s manageable. Courts know utility from 101 already (ironic, huh?). Less metaphysics, more meat.
Take biomed. Unmodified genes out. But CRISPR tweaks? In, if useful. Research free-riding? Protected. Balances monopoly with progress – Congress’s actual job.
Business methods? If primary utility’s trading stocks via app, nope. But app optimizing factory robots? Techno enough.
Gray? Sure. But less than PERA’s ‘substantially economic’ mush.
Why Does Patent Eligibility Still Matter in 2025?
Patents fuel tech. AI? Software? Biotech? All tangled in 101 limbo. Firms hoard defensively, innovation stalls. US lags – Europe, China chug along with saner rules.
PERA could fix. But as-is? Widens doors to junk. Professors’ tweak slams ‘em selective.
Skeptical? Me too. Congress loves grand gestures, hates details. Tillis-Coons duo persistent, though. House parallel bill? Momentum.
Still, without utility pivot, expect lawsuits galore. New 101 wars.
Lefstin, Menell: Heroes or tinkers? Time – gasp, forbidden – but their post advances the ball. Clean slate needs teeth.
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Frequently Asked Questions
What is the Patent Eligibility Reform Act (PERA)?
PERA 2025 aims to overhaul Section 101, axing judicial exceptions for abstract ideas, laws of nature. Excludes business processes, natural genes – with big loopholes.
Will PERA fix Alice/Mayo patent mess?
Doubtful in current form. Narrow exclusions miss most problems; professors’ utility rewrite might.
How does professors’ proposal differ from PERA?
Utility-focused: Bars nontechno processes by purpose, not vague categories. Adds research exemption for natural patents.
And that’s your acerbic primer. Patent world awaits.
