With Senator Tillis in the final days of his term as a Senator, two panels testified on October 7, 2025, for the Senate Subcommittee on Intellectual Property. Both Senator Tillis and Coons promised to do what they can to advance the bill out of committee. Of the eight witnesses that testified, six were in favor and two opposed. The current PERA 2025 would reset the law of patent eligibility in the United States to where it was before the U.S. Supreme Court's rulings in Mayo Collaborative Services v. Prometheus Labs., Inc., 566 U.S. 66 (2012) and Alice Corp. v. CLS Bank Int'l, 573 U.S. 208 (2014). PERA 2025 removes current judicial exceptions to eligibility by explicitly stating that eligibility for any useful process, machine, manufacture or composition of matter is “subject only to the exclusions in sub-section (b) and to the further conditions and requirements of this title.” The four exclusions contained in sub-section (b) are limited to:

1. A mathematical formula that is not part of an otherwise patent eligible claimed invention.

2. A mental process performed solely in the human mind, or which occurs in nature wholly independent of any human activity.

3. An unmodified human gene, as the gene exists in the human body.

4. An unmodified human gene that is isolated from the human body, but otherwise the same as that gene exists in the human body.

5. An unmodified natural material, as that material exists in nature.

6. A process that is substantially economic, financial, business, social, cultural or artistic.

In Determining Eligibility of a Claimed Invention

PERA 2025 specifies that a determination of whether a claim is directed to patent eligible material shall be determined ‘‘(A) by considering the claimed invention as a whole and without discounting or disregarding any claim element; and (B) without regard to"

(i) the manner in which the claimed invention was made;

(ii) whether a claim element is known, conventional, routine, or naturally occurring;

(iii) the state of the applicable art, as of the date on which the claimed invention is invented; or

(iv) any other consideration in section 102, 103, or 112.

PERA 2025 further codifies that patent eligibility may be determined on motion of a party when there are no genuine issues of material fact and allows limited discovery relevant to eligibility.

Rules of Construction

In Section 4, PERA 2025 provides that the inclusion of pre- or post-solution activity by a computer (or other machine or manufacture) in claim language shall not be sufficient to confer patent eligibility on the claim if that computer (or other machine or manufacture) is not necessary to practically perform the invention. Undoubtedly, this clause will be the subject of much litigation as the courts determine what it means to be necessary to practically perform the invention.

Key Takeaways

PERA 2025 is a solution for a problem that needs to be resolved so the U.S. can maintain its competitive advantage with intellectual property. The uncertainty of the current jurisprudence on patent eligibility is a strong disincentive for innovators who would otherwise seek to protect their inventions. This uncertainty only benefits Big Tech, and it is time to fix this problem. This author requests that each of you reach out to your elected representatives and urge the passage of PERA 2025. Action on PERA is needed now as there is a tremendous amount of innovation that the Courts have found directed to a judicial exception to eligible subject matter, thereby allowing Big Tech to infringe and profit over a patent owner's technology. PERA will help ensure Big Tech is stopped from using the courts to destroy more intellectual property rights.

By eliminating and replacing the current judicial exceptions to patent eligibility Congress would reassert its proper Constitutional role to define the law, and in this case what qualifies for patent protection, and put the courts back into their proper lane, which is to interpret the laws passed by Congress; not to make the law up by layering on judicially created requirements not found in the statute.

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