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American Bar Association calls for less ambiguity in patent law

Patent eligibility has become an issue of grave concern to many in the intellectual property industry, particularly after recent decisions by the Supreme Court and Court of Appeals for the Federal Circuit. Concerned parties include the Intellectual Property Law section of the American Bar Association (ABA).

In October 2016, the U.S. Patent and Trademark office (USPTO) released an invitation for public comment on patent matter subject eligibility. In response to this call for comment, the ABA sent a letter in late March, proposing an amendment to Section 101 of the Patent Act.

Donna P. Suchy, Intellectual Property Section Chair of the ABA, wrote the letter to The Honorable Michelle K. Lee, USPTO Director and Under Secretary of Commerce for Intellectual Property. Suchy writes that recent Supreme Court decisions have "injected ambiguity into the eligibility determination," which creates a risk in new-technology investments, therefore also risking U.S. leadership in these areas.

The letter includes a legislative language for a Section 101 amendment that was written and approved by the IP section of the APA. The proposal focuses on prohibiting patents that preempt the use by others of laws of nature, natural phenomena and abstract ideas.

Although it is not meant to be the "final word" or proposed final decision in Section 101's amendment, the IP section of the ABA took a proactive step in the right direction. "We believe it is an important first step toward a politically palatable solution to the unworkable and detrimental state of current 101 jurisprudence," Suchy wrote.

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