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Boston Patent Law Association Response to USPTO Request for Information on the Current State of Patent Eligibility Jurisprudence in the United States

Jonathan Roses co-authored on behalf of the Boston Patent Law Association's (BPLA’s) Patent Office Practice Committee an October 2021 Response to USPTO Request for Information on the current state of patent eligibility (“§101”) jurisprudence in the United States, and how current jurisprudence has impacted investment and innovation, particularly in critical technologies such as quantum computing, artificial intelligence, precision medicine, diagnostic methods, and pharmaceutical treatments. The Response expressed concern over the reduced predictability of outcomes for inventors and investors seeking to acquire and enforce patent rights based on the current application of § 101 and highlighted the confusion caused by conflation of issues of anticipation and obviousness with subject matter eligibility.  Various activity- and technology-specific impacts were noted in the context of both domestic and international practice, and the Response concluded that current patent eligibility jurisprudence either creates uncertainty as to the value of patents directed to critical technologies or directly diminishes their value, resulting in numerous downstream effects, including reduced investment in R&D.