The State of Patent Eligibility in America: Testimony of David O. Taylor before the United States Senate Judiciary Committee, Subcommittee on Intellectual Property

Abstract

Drawing upon my prior research, this written testimony first summarizes the current state of patent eligibility law, explaining how patent eligibility law is in a state of crisis and why legislative reform is needed to eliminate that crisis. It explains why the Supreme Court is unlikely to resolve the current crisis, why alternative avenues to project inventive efforts and investments are insufficient, and why it is appropriate for Congress in particular to take action to change patent eligibility law. Such action would likely withstand a challenge under the Constitution given that eligibility law is a question of policy appropriately directed to Congress. Not only would legislative reform be permissible, there is broad consensus that it is necessary. This testimony then identifies four basic principles that should guide any legislative effort to correct patent eligibility law, before using those principles to evaluate amendments to the patent statute proposed by Senators Coons and Tillis and Representatives Doug Collins, Hank Johnson, and Steve Stivers on May 22, 2019.