The majority of high-tech patent lawsuits are brought by patent trolls—companies that exist not to provide products or services, but primarily have a business using patents to threaten others’ work.
Some politicians are proposing to make that bad situation worse. Rather than taking the problem of patent trolling seriously, they want to encourage more bad patents, and make life easier—and more profitable—for the worst patent abusers.
The Patent Eligibility Restoration Act, S. 2140, (PERA), sponsored by Senators Thom Tillis (R-NC) and Chris Coons (D-DE) would be a huge gift to patent trolls, a few tech firms that aggressively license patents, and patent lawyers. For everyone else, it will be a huge loss. That’s why we’re opposing it, and asking our supporters to speak out as well.
Patent trolling is still a huge, multi-billion dollar problem that’s especially painful for small businesses and everyday internet users. But, in the last decade, we’ve made modest progress placing limits on patent trolling. The Supreme Court’s 2014 decision in Alice v. CLS Bank barred patents that were nothing more than abstract ideas with computer jargon added in. Using the Alice test, federal courts have kicked out a rogue’s gallery of hundreds of the worst patents.
Under Alice’s clear rules, courts threw out ridiculous patents on “matchmaking”, online picture menus, scavenger hunts, and online photo contests. The nation’s top patent court, the Federal Circuit, actually approved a patent on watching an ad online twice before the Alice rules finally made it clear that patents like that cannot be allowed. The patents on “bingo on a computer?” Gone under Alice. Patents on loyalty programs (on a computer)? Gone. Patents on upselling (with a computer)? All gone.
Alice isn’t perfect, but it has done a good job saving internet users from some of the worst patent claims. At EFF, we have collected stories of people whose careers, hobbies, or small companies were “Saved by Alice.” It’s hard to believe that anyone would want to invite such awful patents back into our legal system—but that’s exactly what PERA does.
PERA’s attempt to roll back progress goes beyond computer technology. For almost 30 years, some biotech and pharmaceutical companies actually applied for, and were granted, patents on naturally occuring human genes. As a consequence, companies were able to monopolize diagnostic tests that relied on naturally occurring genes in order to help predict diseases such as breast cancer, making such testing far more expensive. The ACLU teamed up with doctors to confront this horrific practice, and sued. That lawsuit led to a historic victory in 2013 when the Supreme Court disallowed patents on human genes found in nature.
If PERA passes, it will explicitly overturn that ruling, allowing human genes to be patented once again.
That’s why we’re going to fight against this bill, just as we fought off a very similar one last year. Put simply: it’s wrong to let anyone patent basic internet use. It hurts innovation, and it hurts free speech. Nor will we stand idly when threatened with patents on the building blocks of human life—a nightmarish concept that should be relegated to sci-fi shows.
This Bill Destroys The Best Legal Defense Against Bad Patents
It’s critical that Alice allows patents to be thrown out under Section 101 of the patent law, before patent trolls can force their opponents into expensive litigation discovery. This is the most efficient and correct way for courts to throw out patents that never should have been issued in the first place. If the patent can’t pass the test under Alice, it’s really not much of an “invention” at all.
But the effectiveness of the Alice test has meant that some patent trolls and IP lawyers aren’t making as much money. That’s why they want to insist that other areas of law should be used to knock out bad patents, like the ones requiring patents to be novel and non-obvious.
This position is willfully blind to the true business model of patent trolling. The patent trolls know their patents are terrible—that’s why they often don’t want them tested in court at all. Many of the worst patent holders, such as Landmark Technology or some Leigh Rothschild entities, make it a point to never even get very far in litigation. The cases rarely get to claim construction (an early step in patent litigation, where a judge decides what the patent claims mean), much less to a full jury trial. Instead, they simply leverage the high cost of litigation. When it’s hard and expensive for defendants to file a motion challenging a patent, the patents often don’t even get properly tested. Then trolling companies get to use the judicial system for harassment, making their settlement demands cheaper than fighting back. For the rare defendant that fights back, they can drop the case.
This Bill Has No Serious Safeguards
The bill eliminates the Alice test and every other judicial limitation on abstract patents that has formed over the decades. After ripping down this somewhat effective gate on the worst patents, it replaces it with a safeguard that’s nearly useless.
On page 4 of the bill, it states that:
“performing dance moves, offering marriage proposals, and the like shall not be eligible for patent coverage, and adding a non-essential reference to a computer by merely stating, for example, ‘‘do it on a computer’’ shall not establish such eligibility.”
The addition of “do it on a computer” patents is an interesting change to last year’s version of the same bill, since that’s a specific phrase we used to critique the bill in our blog post last year.
After Alice, EFF and others rightly celebrated courts’ ability to knock out most “do it on a computer” patents. But “do it on a computer” isn’t language that actually gets used in patents; it’s a description of a whole style of patent. And this bill specifically allows for such patents. It states that any process that “cannot be practically performed without the use of a machine (including a computer)” will be eligible for a patent.
This language would mean that many of the most ridiculous patents that have been knocked out under Alice in the past decade will survive. They all describe the use of processors, “communications modules” and other jargon that requires computers. That means patents on an online photo contest, or displaying an object online, or tracking packages, or making an online menu—could once again become part of patent troll portfolios. All will be more effective at extorting everyday people and real innovators making actual products.
“To See Your Own Blood, Your Own Genes”
From the 1980s until the 2013 Myriad decision, the U.S. Patent and Trademark Office granted patents on human genomic sequences. If researchers “isolated” the gene—a necessary part of analysis—they would then get a patent that described isolating, or purified, as a human process, and insist they weren’t getting a patent on the natural world itself.
But this concept of patenting an “isolated” gene was simply a word game, and a distinction without a difference. With the genetic patent in hand, the patent-holder could demand royalty payments from any kind of test or treatment involving that gene. And that’s exactly what Myriad Genetic did when they patented the BRCA1 and BRCA2 gene sequences, which are important indicators for the prevalence of breast or ovarian cancer.
Myriad’s patents significantly increased the cost of those tests to U.S. patients. The company even sent some doctors cease and desist letters, saying the doctors could not perform simple tests on their own patients—even looking at the gene sequences without Myriad’s permission would constitute patent infringement.
This behavior caused pathologists, scientists, and patients to band together with ACLU lawyers and challenge Myriad’s patents. They litigated all the way to the Supreme Court, and won. “A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated,” the Supreme Court stated in Association for Molecular Pathology v. Myriad Genetics.
A practice like granting and enforcing patents on human genes should truly be left in the dustbin of history. It’s shocking that pro-patent lobbyists have convinced these Senators to introduce legislation seeking to reinstate such patents. Last month, the President of the College of American Pathologists published an op-ed reminding lawmakers and the public about the danger of patenting the human genome, calling gene patents “dangerous to the public welfare.”
As Lisbeth Ceriani, a breast cancer survivor and a plaintiff in the Myriad case said, “It’s a basic human right to see your own blood, your own genes.”
We can’t allow patents that allow internet users to be extorted for using the internet to express themselves, or do business. And we won’t allow our bodies to be patented. Tell Congress this bill is going nowhere.