A recently introduced patent bill would authorize patents on abstract ideas just for including computer jargon, and would even legalize the patenting of human genes. The “Patent Eligibility Restoration Act,” sponsored by Sen. Thom Tillis (R-NC), explicitly overrides some of the most important Supreme Court decisions of the past 15 years, and would tear down some of the public’s only protections from the worst patent abuses.
Pro-patent maximalists are trying to label the Tillis bill as a “consensus,” but it’s nothing of the sort. We need EFF supporters to send a message to Congress that it isn’t acceptable to allow patent trolls, or large patent-holders, to hold our technology hostage.
We Don’t Need 'Do it on a Computer' Patents
Starting in the late 1990s, the U.S. Court of Appeals for the Federal Circuit essentially did away with any serious limits on what could be patented. This court, the top patent appeals court in the U.S., allowed patents on anything that produced a “useful result,” even when that result was just a number. This allowed for a period of more than a decade during which the U.S. Patent Office issued, and the courts enforced, all kinds of ridiculous patents.
Several Supreme Court decisions eventually limited the power of bad patents. Most importantly, the Supreme Court’s 2014 Alice Corp. v. CLS Bank decision made a clear rule—just adding “on a computer” to an abstract idea isn’t enough to make it patentable.
The Alice Corp. decision was not a panacea. It did not eliminate the serious problem of patent trolls—that is, companies that have no products or services, but simply sue and threaten others over patents. But it did put a big dent in the patent trolling business. Vaguely worded software patents can still be used to extort money from software developers and small businesses. But when those patents can be challenged in court, they now rarely survive.
That’s been a huge benefit for individuals and small businesses. Our “Saved by Alice” project details the stories of several small businesses that managed to overcome unjustified patent troll demands because of the Alice Corp. precedent.
It’s now been eight years since the Alice Corp. decision, and judges have thrown out hundreds of bad patents that couldn’t stand up to this test. It’s likely that many more bad patents have been abandoned because their owners know they can’t keep using them to threaten people. The patents knocked down by Alice Corp. include:
- A patent that claimed using pictures menus on a computer, which a patent troll called DietGoal Innovations LLC used to sue more than 70 companies
- The Alice Corp. patent itself, which claimed a well-known form of mitigating settlement risks in financial transactions—but simply did it on a computer
- A patent on watching ads online before viewing content (Before Alice Corp., an appeals court wrongly upheld this patent, owned by a company called Ultramercial)
- A patent on playing bingo on a computer
- A patent on filtering email
- A patent that claimed “storing and labeling information,” which was used to sue more than 150 companies
Ten years ago, there weren’t effective legal mechanisms to throw out the worst types of patents. If someone targeted by a patent troll felt the patent was wrongly granted, they’d likely have to pay millions of dollars in patent litigation costs just to take their chances in front of a jury. The Tillis bill will make it easier to use exactly the types of weak, overbroad patents that often threaten startups and small businesses.
Since the Alice Corp. decision, it’s much harder to demand money using questionable patents. That’s why patent trolls, among others, don’t like the decision, and would like to see a bill like this pass to override it. But the Senate should not grant this wish.
No Patents on 'Business Methods' or 'Mental Processes'
The Tillis bill encodes a version of the old rule that virtually any kind of “business method” is worthy of a patent. It explicitly allows for patents on “non-technological economic, financial, business, social, cultural, or artistic process,” as long as those are embodied in a “machine or manufacture.”
In other words, you can take basic human “methods” of doing business, or even socializing, and just add a generic purpose computer (or another machine). The Tillis bill does specify that the machine must do more than “merely storing or executing,” but that’s an unclear if not meaningless narrowing. That will merely allow patent lawyers to avoid using those exact verbs—“storing” and “executing”—when they’re writing patents.
Software patents are drafted by patent lawyers, who have come up with a lot more ways to describe manipulating data than just “storing” and “executing.” To take just one of the stupid patents above, the first claim in the Ultramercial ad-watching patent described an Internet-based process of “receiving” media products, “selecting” a sponsor message, “providing” the media to the public for sale, “restricting” general access, “facilitating” display of the ad, “recording the transaction,” and also “receiving payment.”
The Tillis bill even implicitly authorizes patents on a “mental process,” saying the only kind that wouldn’t be eligible is one that takes place “solely in the human mind.” That would seem to imply that even adding trivial steps like writing things down or communicating information could make a “mental process” patentable.
If Congress passes the Patent Eligibility Restoration Act, it will destroy one of our best safeguards against abusive patents. The Tillis bill will give an explicit green light to the most aggressive patent trolls, the funders of their litigation, and the attorneys who work for them. They’ll get more outrageous business method patents, and use them to demand payments from working software developers.
Patenting Human Genes is Wrong and Should Remain Illegal
The Patent Eligibility Restoration Act’s negative impacts won’t be limited to software. The bill proposes to overturn the Supreme Court’s clear rule against getting patents on human genes.
Genes aren’t inventions. They exist in nature. But for about two decades, the U.S. Patent and Trademark Office wrongfully granted thousands of patents on human genes. The companies seeking these patents claimed that because they had “isolated” the genes outside the body, they should be allowed to hold patents on them.
One of those companies was Myriad Genetics, which owned patents on two human genes associated with breast and ovarian cancer, BRCA1 and BRCA2. Myriad shut competitors out of the testing market, charged monopoly prices, and even sent cease-and-desist letters to universities and institutes that wanted to do BRCA testing on their own patients.
In 2009, the ACLU filed a lawsuit challenging the validity of those patents. The ACLU represented patients who couldn’t afford Myriad’s high-priced patented test, and doctors who wanted to perform those tests, but had been stopped by Myriad’s threats. The case ultimately went to the Supreme Court, which struck down the patents. “Separating that gene from its surrounding genetic material is not an act of invention,” stated the Court.
Incredibly, the Tillis bill carves out the exact same loophole that was shut down by the ACLU’s lawsuit. It supposedly bans patents on “an unmodified human gene, as that gene exists in the body,” but then in the very next section says that any gene that has been “isolated, purified, enriched, or otherwise altered” would be eligible.
This is the same patent abuse loophole that Myriad used to take advantage of cancer patients and their doctors. That’s why the ACLU has called the bill “a gift to patent lawyers and predatory companies” that risks “the creation of a disturbing market for exclusive rights over material found in nature.”
We agree. Patent trolls and a few companies that want to make money off patent threats have portrayed this bill as a “consensus,” in the hopes of making it a baseline for negotiations in an upcoming Congress. In reality, it’s an extreme piece of legislation that should be rejected. Tillis’ bill would revive some of the cruelest patent abuses of the past two decades.