Tillis Bill to Amend Section 101 of the Patent Act

On August 2, 2022, Senator Thom Tillis (R-NC) released a proposed bill to further codify what is and is not proper subject matter for a patent claim at the United States Patent and Trademark Office (USPTO). The Patent Eligibility Restoration Act of 2022, Senate Bill 4734, amends 35 U.S.C. s. 101 to specifically exclude: mathematical formulas (apart from a useful invention or discovery); processes that are non-technical, purely mental, or occur independent of any human activity; unmodified genes; and unmodified natural materials.

The bill would amend Section 101 to read as follows:

(a) IN GENERAL.—Whoever invents or discovers any useful process, machine, manufacture, or composition of matter, or any useful improvement thereof, may obtain a patent therefor, subject only to the exclusions in sub-section (b) and to the further conditions and requirements of this title.
       (1) IN GENERAL.—Subject to paragraph (2), a person may not obtain a patent for any of the following, if claimed as such:
            (A) A mathematical formula, apart from a useful invention or discovery.
            (B) A process that— (i) is a non-technological economic, financial, business, social, cultural, or artistic process; (ii) is a mental  process performed solely in the human mind; or (iii) occurs in nature wholly independent of, and prior to, any human activity.
           (C) An unmodified human gene, as that gene exists in the human body.
           (D) An unmodified natural material, as that material exists in nature.

However, the bill also adds conditions to the aforementioned exceptions. With respect to the excluded processes, the Tillis bill notes that the exclusion does not apply if the process is embodied in a “machine or manufacture,” “unless that machine or manufacture is recited in a patent claim without integrating, beyond merely storing and executing, the steps of the process that the machine or manufacture perform.” With respect to human genes and natural materials, neither is considered “unmodified” if it is “isolated, purified, enriched, or otherwise altered by human activity” or “employed in a useful invention or discovery.”

The Patent Eligibility Restoration Act of 2022 amends the definition of “process” in 35 U.S.C. s. 100(b) as “process, art or method, and includes a use, application, or method of manufacture of a known or naturally-occurring process, machine, manufacture, composition of matter, or material.” The bill also adds in a definition for “useful” – “that the invention or discovery has a specific and practical utility from the perspective of a person of ordinary skill in the art to which the invention or discovery pertains.’’

The bill was read twice and was referred to the Committee on the Judiciary.