USPTO tells Congress that stakeholders split on eligibility law and that some have turned to trade secrets instead

United States Patent and Trademark Office, "Patent eligible subject matter: Public views on the current jurisprudence in the United States," Report to Congress (June 2022), transmitted June 24, 2022 to Senators Thom Tillis, Chris Coons, Mazie Hirono and Tom Cotton in response to their letter of March 5, 2021

The Office delivered to four senators the report they requested in March 2021 on the state of patent eligibility law under Section 101 of Title 35 of the United States Code after Mayo and Alice. The report synthesizes 141 comments received in response to a July 9, 2021 Federal Register request, with the deadline extended to October 15, 2021. Commenters agreed that eligibility law should be clear, predictable and consistently applied, and disagreed on whether it is. Supporters of the current law were mainly companies that face litigation over broad software patents, joined by some life sciences and patient advocacy groups; critics included many practitioners, life sciences companies, startups and small and medium-sized enterprises, who said the law makes patents less available and less predictable and discourages investment. The report states that "higher levels of uncertainty may reduce investments for new or existing technologies," presents the Office's own data showing that the allowance rate for applications containing artificial intelligence stayed below the rate for other applications until 2019, and records commenters in the most affected fields, life sciences, computer-related technologies including artificial intelligence and machine learning, and mechanical and future technologies, who said they no longer seek patents and rely on trade secrets instead. The Office made no recommendations and said it will continue to gather views through listening sessions and at 101@uspto.gov.

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