PERA Remains a Serious Threat to Efforts Against Bad Patents

As all things old are new again, a bill that would make obtaining bad patents easier and harder to challenge is being considered in the Senate Judiciary Committee. The Patent Eligibility Restoration Act (PERA) would reverse over a decade of progress in fighting patent trolls and making the patent system more balanced.

PERA would overturn long-standing court decisions that have helped keep some of the most problematic patents in check. This includes the Supreme Court’s Alice v. CLS Bank decision, which bars patents on abstract ideas. While Alice has not completely solved the problems of the patent system or patent trolling, it has led to the rejection of hundreds of low-quality software patents and, as a result, has allowed innovation and small businesses to grow.

Thanks to the Alice decision, courts have invalidated a rogue’s gallery of terrible software patents—such as patents on online photo contests, online bingo, upselling, matchmaking, and scavenger hunts. These patents didn’t describe real inventions—they merely applied old ideas to general-purpose computers. But PERA would wipe out the Alice framework and replace it with vague, hollow exceptions, taking us back to an era where patent trolls and large corporate patent-holders aggressively harassed software developers and small companies.

This bill, combined with recent changes that have restricted access to the Patent Trial and Appeal Board (PTAB), would create a perfect storm—giving patent trolls and major corporations with large patent portfolios free rein to squeeze out independent inventors and small businesses.

EFF is proud to join a letter, along with Engine, the Public Interest Patent Law Institute, Public Knowledge, and R Street, to the Senate Judiciary Committee opposing this poorly-timed and concerning bill. We urge the committee to instead focus on restoring the PTAB as the accessible, efficient check on patent quality that Congress intended.