Jeffrey Wolfson in BioCentury: Congress Pushes to Reform Patent Eligibility, Biotechs say not Enough

05/14/2019

BioCentury quoted Haynes and Boone, LLP Partner Jeffrey Wolfson in an article about the framework Congress has proposed to reform patent policy and how the solution falls short for biotech industry.

Here is an excerpt:

The tech goliaths want to keep eligibility criteria narrow: their goal is to easily strike down inventors or competitors hoping to gain by patenting elements used in the big players’ software and products. Life science companies want wide eligibility, to protect inventions essential to making money in diagnostics and personalized medicine.

Through a series of conflicting Supreme Court decisions interpreting Section 101 over the past decade, patent eligibility criteria have become increasingly narrow.

Jeffrey Wolfson, a partner at Haynes and Boone, LLP, agreed the exception list needs revision. He says different interpretations could lead to exclusion of subject matter categories that should be patent eligible.

Wolfson told BioCentury that patent eligibility, including the exceptions to it and the tests to determine it, needs to be better defined for consistent interpretation, but noted that this will be particularly hard to do in a statutory format without further federal regulations.

"Statutes by nature, along with governing federal regulations and rules of practice, are short and to the point. It is the court decisions that usually help us interpret the statute, but that's what we're trying to avoid here," he said. "I'm not sure how they could better define a test for patent eligibility in statutory form."

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