Make America Innovative Again

China is now the leader in patents, being granted more than twice the global patents as the United States in 2023. China is also becoming a leader in AI technology, which will be critical to America’s defense and is a significant component of many new products. President Trump is putting in place policies that will allow America to regain its lead in innovation. One way he can do that is to pressure Congress to pass the Patent Eligibility Restoration Act of 2025 (PERA). And you can help.

In 2012, the Supreme Court decided the case of Mayo Collaborative Services v. Prometheus Labs where Mayo had patents on methods for applying sequences of dosages of medications to find the optimal dose to treat patients with autoimmune diseases while minimizing side effects. The court found that Mayo’s patents were not valid because, according to the court, methods that applied natural laws were not patentable. Can you think of any invention that doesn’t apply natural laws? Think of combustion of fuels, movement of air over surfaces of a wing, generation of electricity to power a motor, or pretty much anything ever invented. PERA would correct this decision by once again allowing complex sequences of medical tests, for example, to be patented.

In 2013, the Supreme Court decided in Assoc. for Molecular Pathology v. Myriad Genetics that any process that located specific genes was not patentable. Myriad had developed medical tests for detecting gene mutations to assess cancer risks in patients. The patents held by Myriad would grant exclusive rights to isolate an individual’s BRCA1 and BRCA2 genes and to synthetically create BRCA complementary DNA. But the Supreme Court decided that methods for locating and isolating genes were not patentable. PERA would correct this decision by once again allowing this type off very difficult task to be patentable.

In 2014, the Supreme Court decided in Alice Corp. v. CLS Bank International that software is patentable… unless there’s no specific hardware involved in the invention. Listing a complex series of steps and calculations in a computer program and specifying that it must be performed by a computer is not sufficient, according to the court, to make it patentable. Which means… for all practical purposes, software is no longer patentable. PERA would correct this decision by allowing software to be patentable once again.

Methods have been protected by patents since the Patent Act of 1790 up until 2012 when the Supreme Court started disqualifying many method patents. Keep in mind that all patents, including method patents, still need to be novel, useful, and non-obvious. You can’t simply patent anything you think of. You need to describe it in detail so that someone else in the appropriate field (“one of ordinary skill in the art”) can reproduce it. It needs to be something that no one else has thought of before. It needs to be able to be used for some important task. And it needs to be something that wouldn’t be obvious to create by simply combining other well-known inventions. For example, a flying car is simply a combination of two well-known inventions, the automobile and the airplane, and is thus not patentable unless there is some additional feature that isn’t obvious. So when someone argues that software shouldn’t be patentable because there are so many programmers writing software, keep in mind that every software patent, just like any other patent, has to be defended at the patent office and overcome challenges by the patent examiner. If the patent is challenged in court, there will be experts like me trying to show to a jury that it’s commonplace, useless, or obvious and thus not valid. You can’t patent just any software; you must argue with proof that your software is worthy of a patent.

I’ve been in tech for about 50 years. I’ve studied all kinds of technology from transistors to computer systems to cloud computing. I read about the invention of the computer and the semiconductor. I was studying in high school at the time of the invention of the personal computer and rushed out to get mine. I was working in Silicon Valley at the birth of the web browser and the expansion of the Internet and adoption of the smartphone. I studied AI and took courses from some of its pioneers while I was a student at Stanford. And yet, I’ve never seen a technology that promises to change society as rapidly and as significantly as generative artificial intelligence (GenAI) and its descendants. GenAI technology is pure software. Consultancy company McKinsey & Company predicts that GenAI could add $2.6 to $4.4 trillion to the global economy every year. Without PERA, AI patents will be impossible to obtain in the United States. But inventors in other countries will be able to obtain them. Including China.

Jack Dorsey and Elon Musk, the founder of Twitter and the current owner of X (formerly Twitter) respectively, just stated that they would like to “delete all IP law [sic].” Why? Because IP law protects individual inventors and small companies. SpaceX has thousands of patents. Tesla is one of the largest filers of patents in America. Elon Musk personally has filed 25 patents, ten of which have been granted by the patent office so far. Google started with a unique search patent that attracted funding from venture capital firms when its founders were working from their college dorm room. It was a pure software patent, which would not be valid today. Microsoft, Amazon, Apple, Meta, and every other Big Tech company obtain thousands of patents every year. So why do these companies and tech moguls so vocally object to patents? Because they already have lots of cash and very large market shares. Patents disrupt companies and industries, and Big Tech does not want to be disrupted.

PERA is not supported along party lines. Republican Darryl Issa, Chairman of the Subcommittee on Courts, Intellectual Property, and the Internet, is probably the greatest obstacle for patent reform in the House of Representatives, even though the company he founded, Directed Electronics, Inc. spends much time and resources suing competitors over patents. I know because I’ve been a consultant and expert witness for many of those competitors in patent lawsuits. Yet other Republicans in Congress are very strongly pro-patent including Thom Tillis, Tom Cotton, and Thomas Massie (who unfortunately is despicable for his consistent anti-Israel votes) as are many Democrats including Christopher Coons and Scott Peters.

Please contact your Representatives and Senators and encourage them to Make America Innovative Again by voting for The Patent Eligibility Restoration Act of 2025 (PERA). You can find your elected officials here.

About the author

Bob Zeidman is the creator of the field of software forensics and the founder of several successful high-tech Silicon Valley firms including Zeidman Consulting and Software Analysis and Forensic Engineering. His latest venture is Good Beat Poker, a new way to play and watch poker online. He is the author of textbooks on engineering and intellectual property as well as award-winning screenplays and novels. His latest book is Election Hacks, the true story of how he challenged his own beliefs about voting machine hacking in the 2020 presidential election and made international news and (possibly) $5 million.