[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4734 Introduced in Senate (IS)]

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117th CONGRESS
  2d Session
                                S. 4734

 To amend title 35, United States Code, to address matters relating to 
       patent subject matter eligibility, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 2, 2022

  Mr. Tillis introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend title 35, United States Code, to address matters relating to 
       patent subject matter eligibility, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Patent Eligibility Restoration Act 
of 2022''.

SEC. 2. PATENT ELIGIBILITY.

    (a) In General.--Chapter 10 of title 35, United States Code, is 
amended--
            (1) in section 100--
                    (A) in subsection (b), by striking ``includes a new 
                use of a known process'' and inserting ``includes a 
                use, application, or method of manufacture of a known 
                or naturally-occurring process''; and
                    (B) by adding at the end the following:
    ``(k) The term `useful' means, with respect to an invention or 
discovery, that the invention or discovery has a specific and practical 
utility from the perspective of a person of ordinary skill in the art 
to which the invention or discovery pertains.''; and
            (2) by amending section 101 to read as follows:
``Sec. 101. Patent eligibility
    ``(a) In General.--Whoever invents or discovers any useful process, 
machine, manufacture, or composition of matter, or any useful 
improvement thereof, may obtain a patent therefor, subject only to the 
exclusions in subsection (b) and to the further conditions and 
requirements of this title.
    ``(b) Eligibility Exclusions.--
            ``(1) In general.--Subject to paragraph (2), a person may 
        not obtain a patent for any of the following, if claimed as 
        such:
                    ``(A) A mathematical formula, apart from a useful 
                invention or discovery.
                    ``(B) A process that--
                            ``(i) is a non-technological economic, 
                        financial, business, social, cultural, or 
                        artistic process;
                            ``(ii) is a mental process performed solely 
                        in the human mind; or
                            ``(iii) occurs in nature wholly independent 
                        of, and prior to, any human activity.
                    ``(C) An unmodified human gene, as that gene exists 
                in the human body.
                    ``(D) An unmodified natural material, as that 
                material exists in nature.
            ``(2) Conditions.--
                    ``(A) Certain processes.--Notwithstanding paragraph 
                (1)(B)(i), a person may obtain a patent for a claimed 
                invention that is a process described in such provision 
                if that process is embodied in a machine or 
                manufacture, unless that machine or manufacture is 
                recited in a patent claim without integrating, beyond 
                merely storing and executing, the steps of the process 
                that the machine or manufacture perform.
                    ``(B) Human genes and natural materials.--For the 
                purposes of subparagraphs (C) and (D) of paragraph (1), 
                a human gene or natural material that is isolated, 
                purified, enriched, or otherwise altered by human 
                activity, or that is otherwise employed in a useful 
                invention or discovery, shall not be considered to be 
                unmodified.
    ``(c) Eligibility.--
            ``(1) In general.--In determining whether, under this 
        section, a claimed invention is eligible for a patent, 
        eligibility shall be determined--
                    ``(A) by considering the claimed invention as a 
                whole and without discounting or disregarding any claim 
                element; and
                    ``(B) without regard to--
                            ``(i) the manner in which the claimed 
                        invention was made;
                            ``(ii) whether a claim element is known, 
                        conventional, routine, or naturally occurring;
                            ``(iii) the state of the applicable art, as 
                        of the date on which the claimed invention is 
                        invented; or
                            ``(iv) any other consideration in section 
                        102, 103, or 112.
            ``(2) Infringement action.--
                    ``(A) In general.--In an action brought for 
                infringement under this title, the court, at any time, 
                may determine whether an invention or discovery that is 
                a subject of the action is eligible for a patent under 
                this section, including on motion of a party when there 
                are no genuine issues of material fact.
                    ``(B) Limited discovery.--With respect to a 
                determination described in subparagraph (A), the court 
                may consider limited discovery relevant only to the 
                eligibility described in that subparagraph before 
                ruling on a motion described in that subparagraph.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 10 of title 35, United States Code, is amended by striking the 
item relating to section 101 and inserting the following:

``101. Patent eligibility.''.
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