Patent Heavyweights Take Strong Stance Against ACLU Anti-Patent Reform Statements

“Congress should reform § 101 and it should not be diverted by misleading policy rhetoric or mistaken statements about the patent laws.”

Tough businessman -, 24 law professors, former Chief Judges of the Federal Circuit and former heads of the U.S. Patent and Trademark Office (USPTO) sent a letter to Senators Thom Tillis (R-NC) and Chris Coons (D-DE) and Representatives Jerrold Nadler (D-NY) and Doug Collins (R-GA) aimed at correcting what the letter characterizes as “misapprehensions of law and misleading rhetoric” on the subject of pending patent reform legislation.

The letter makes specific reference to statements made by the American Civil Liberties Union (ACLU) claiming that the draft legislation to amend Section 101 of the patent law “if enacted would authorize patenting products and laws of nature, abstract ideas, and other general fields of knowledge.” The authors of yesterday’s letter, which included Retired Federal Circuit Chief Judges Randall Rader and Paul Michel and former USPTO Directors Todd Dickinson and David Kappos, called such statements “profoundly mistaken and inaccurate” and laid out in detail the specific inaccuracies. Rather than expanding the scope of 101 to abstract ideas and laws of nature, said the letter, “the proposed amendments preclude ‘implicit or judicially created exceptions to subject matter eligibility,’” and do not eliminate existing constitutional and statutory bars. The authors continued:

First, pursuant to the constitutional authorization to Congress to enact patent laws “to promote the Progress in . . . the useful Arts,” the patent system secures an exclusive right only in new products, processes, and compositions of matter that constitute the “useful Arts.” Thus, it is a longstanding and fundamental requirement in the patent statutes that only inventions or discoveries falling within the statutory categories in § 101—and in its predecessor statutes dating back to the first Patent Act of 1790—are eligible for patent protection.

The proposed legislative reform to § 101 does not alter this requirement.

The letter further addressed the ACLU’s contention that “the draft legislation would ‘prevent the discovery of novel treatments for diseases’ and would cause ‘harms to innovation and useful research’ in diagnostic tests.” Such claims are not supported by empirical evidence, said the letter, citing studies that showed patents had no effect on follow-on innovation due to the disclosure function of the patent system, which allows for open access to data. Additionally, because of companies’ efforts to commercialize inventions like genetic testing via patents, insurance providers began covering such tests to the ultimate benefit of patients.

Finally, the letter reiterated that human genes simply cannot be patented, as the entire sequence of human genes has been public since the turn of this century—an argument that has been upheld by the Federal Circuit in cases like In re Kubin, 561 F.3d 1351 (Fed. Cir. 2009). “The proposed reform of § 101 does nothing to alter these facts of science or law,” said the letter. It concluded by underscoring the harms to U.S. innovation under the current state of the law:

Unfortunately, U.S. innovators, especially in the high-tech and biopharmaceutical sectors, are suffering under extreme uncertainty about how patent examiners or judges will apply the Alice-Mayo framework that was recently created by the Supreme Court. With high rates of rejections of patent applications at the U.S. Patent & Trademark Office and high rates of invalidations of patents by courts, the only certainty that does exist is that the U.S. no longer secures the fruits of inventive labors with reliable and effective patent rights. This represents a fundamental change in the incentives the U.S. has provided to inventors for over two centuries, as its “gold standard” patent system closes its doors to twenty-first-century innovation in the vital high-tech and biopharmaceutical fields. Congress should reform § 101 and it should not be diverted by misleading policy rhetoric or mistaken statements about the patent laws.

Along with Michel, Rader, Dickinson and Kappos, the letter was signed by professors including Adam Mossoff of Antonin Scalia Law School George Mason University; Jeffrey Lefstin of UC Hastings College of Law; Hugh Hansen of Fordham University School of Law; Kevin Noonan of DePaul University College of Law; and many other distinguished professors of law.

Movement on the bill to reform Section 101 has reportedly been delayed until sometime in August, possibly due to disagreement on the language of the research exemption to avoid preempting fundamental research.


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Join the Discussion

9 comments so far.

  • [Avatar for staff]
    September 16, 2019 05:13 pm

    ‘misapprehensions of law and misleading rhetoric’

    In our view no present bill will restore our patent system to where inventors will once again have a realistic expectation to commercialize our inventions, or even appreciably help. We and our friends in Congress are determined to change that with our bill. With hundreds of years of collective experience in patent law and invention we are committed to that goal.

    For our position and the changes we advocate (the rest of the truth) to restore the patent system, or to join our effort, please visit us at
    or, contact us at

  • [Avatar for Anon]
    August 1, 2019 09:42 am

    Mr. Morgan,

    To your point about the express abrogation of ALL of the mockery of the Supreme Court, THAT does not change the message here denouncing the ACLU and its cadre of hypocrites and anti-patentists.

    To understand why, perhaps THIS is a great spot for Mr. Cole to reformulate his hypothesis about certain items NOT being exceptions, but ALSO squarely not falling within at least one of the enumerated categories that Congress has written.

  • [Avatar for Mike]
    August 1, 2019 09:40 am

    “Congress should … not be diverted by misleading policy rhetoric or mistaken statements …”

    And what of the AIA? In the 2011 Congressional Record, Leahy Smith said this was to fight patent trolls, and such rhetoric has now been called out as a fairy tale from the top – Director Iancu himself. Did Congress pass the AIA based on a fairy tale? The inventor has been thrown under the bus as a result. How about Congress focus their efforts on undoing that garbage?

  • [Avatar for Paul F. Morgan]
    Paul F. Morgan
    August 1, 2019 09:24 am

    From the Senate’s draft bill:
    “No implicit or other judicially created exceptions to subject matter eligibility,
    including “abstract ideas,” “laws of nature,” or “natural phenomena,” shall be used to determine patent eligibility under section 101, and all cases establishing or interpreting those exceptions to eligibility are hereby abrogated.”

  • [Avatar for Anon]
    August 1, 2019 08:02 am

    Not to detract from this article, but I want to give Sherry Knowles props for her very quick and decisively powerful rebuttal at the time of the Tillis/Coons congressional hearings.

  • [Avatar for EG]
    August 1, 2019 07:51 am

    The ACLU is hypocritical, two-faced, and fork-tongued. Nothing new here.

  • [Avatar for Jonathan Stroud]
    Jonathan Stroud
    August 1, 2019 07:40 am

    I agree with and will sign that letter.

  • [Avatar for Dave Barcelou]
    Dave Barcelou
    July 31, 2019 11:56 pm

    Speaking of “misleading rhetoric”, ACLU went to the trouble to file an Amicus Brief in my “Patent Troll” Defamation case stating NEW HAMPSHIRE would become the EDTX for defamation cases if I were to win. Hopefully we’ll make that happen soon!

  • [Avatar for Curious]
    July 31, 2019 01:34 pm

    What, Dennis Crouch did not sign that letter? Color me unsurprised. That “other patent blog” is a haven for anti-patent activists.