The legislative push to overhaul patent eligibility through the Patent Eligibility Restoration Act (PERA) has drawn a clear line in the IP community. While opposition to the bill certainly exists, the nature and substance of the critiques vary significantly. A close look at the arguments reveals that the detailed legal and empirical critiques from Stanford Professor Mark A. Lemley and former USPTO Solicitor Thomas Krause are carrying the bulk of the weight in articulating a case against the bill. In contrast, the opposition from advocacy groups like the Electronic Frontier Foundation (EFF), while important, appears somewhat watered down by its broader, more political focus.
For the inventors, counsel, and other stakeholders, the most persuasive and actionable analyses come from the meticulous analysis of the bill’s text and its real-world consequences—a task at which Lemley and Krause excel.
The question is, why are they apparently the only two carrying the burden here? Does patent eligibility reform have so little momentum that the EFF can essentially phone their argument in?
Professor Lemley: The Empirical Rebuttal
Professor Mark Lemley of Stanford Law School offers a potent, evidence-based critique that forms a cornerstone of the substantive opposition to PERA. He directly confronts the oft-repeated claim that Section 101 jurisprudence is hopelessly unpredictable. While acknowledging that the Alice test “doesn’t offer particularly clear guidance” on its own, Lemley asserts that over the last decade, “the law has settled into a fairly predictable routine” (Lemley, p. 1).
He cites empirical studies showing that patent lawyers can predict § 101 outcomes with surprising accuracy and notes that the Federal Circuit’s affirmance rate in these cases is a high 85.3%, which “compares favorably with the overall affirmance rate for patent cases” (Lemley, p. 2).
Lemley also challenges the narrative that Section 101 has harmed innovation. “Many people warned the sky would fall after Alice,” he writes. “It didn’t” (Lemley, p. 3). He points to the booming AI sector as evidence that the current eligibility standards have not stifled progress. “Artificial intelligence companies, which would seem most directly affected by section 101, are the single most innovative and productive sector of the economy,” he states (Lemley, p. 3).
Former Solicitor Krause: The Insider’s Technical Takedown
The written statement from Thomas Krause, who served as USPTO Solicitor for five years, provides the other pillar of the detailed opposition, offering a precise critique grounded in deep institutional knowledge.
Krause bypasses broad rhetoric and instead focuses on the proposed statutory text, arguing that PERA’s “enumerated exclusions do not exclude the subject matter they purport to exclude” (Krause, p. 4).
His most powerful point is that the bill’s key exceptions are rendered illusory by a critical qualifier: they do not apply if the invention “cannot practically be performed without the use of a machine or manufacture” (Krause, p. 4). Krause points out that this could reverse landmark Supreme Court decisions, meaning “the sorts of ‘business method’ patents that caused the most problems after State Street Bank will again be eligible” (Krause, p. 4).
He also sounds an alarm for litigators by noting that PERA’s “lack of an effective date would spark years of litigation over retroactivity and potentially resurrect tens of thousands of patents that are currently unenforceable under Mayo, Myriad, or Alice“ (Krause, p. 7). This is not a generalized fear; it is a specific, actionable concern that gives practitioners a clear view of the bill’s potential flaws.
The EFF’s Broader, Political Critique
Representing another key perspective, organizations like the EFF focus on the potential real-world impact of legislative changes. However, their argument against PERA is less a direct critique of the bill’s text and more of a broadside against what they see as a harmful trend in patent policy.
In a joint letter, the EFF and its partners framed their argument as a defense against a “perfect storm against American small business innovation” (EFF, p. 3).
The letter dedicates significant space to the argument that the PTAB’s “safety valve has been eviscerated” (EFF, p. 1), heavily conflating the separate issues of PTAB reform and patent eligibility. By doing so, it dilutes its focus on PERA itself. The letter warns that “PERA would open the floodgates to the very patents that the PTAB and the courts were designed to filter out” (EFF, p. 2), leading to “a wave of crippling litigation” (EFF, p. 2). This rhetorical style, while politically potent, lacks the granular, text-based analysis provided by Krause and Lemley that patent professionals require to assess the bill’s specific impact.
Synthesizing the Perspectives
The commentary on PERA highlights a fundamental tension in patent policy. The goal is clarity, but the path is fraught with challenges.
The Predictability Question: Is the current system truly unpredictable, or has it achieved a level of stability, as Lemley suggests? 85% does not seem strong, but answering this is the first step in determining the necessary scope of reform.
The Challenge of Statutory Drafting: Krause’s analysis shows that a single clause can have vast, and potentially negative, consequences. Any legislative solution must be carefully constructed to avoid creating loopholes that undermine its purpose. The potential eligibility of business methods can be a dual-edge blade.
The Innovation Ecosystem: The EFF’s concerns remind us that patent law does not exist in a vacuum. Its rules directly impact the ability of startups to enter the market and compete. Arguing for the status quo does not on-band for the EFF, who have been verbose anti-troll advocates for years.
Despite eligibility reform being a “hot topic” for a decade, the discourse still feels quiet for now. PERA may not be a perfect solution, but the voices on either side will likely need to be louder as the bill moves along.
While the EFF’s letter effectively captures the political zeitgeist of the opposition, it is the detailed, evidence-based arguments of Lemley and Krause that provide the IP community with a true understanding of the stakes.
Their analyses move beyond broad statements of harm to pinpoint the specific textual flaws and practical consequences of the proposed legislation. In the substantive debate over PERA, they are carrying the weight of the argument. How persuasive they need to be, remains to be seen.
Disclaimer: This is provided for informational purposes only and does not constitute legal or financial advice. To the extent there are any opinions in this article, they are the author’s alone and do not represent the beliefs of his firm or clients. The strategies expressed are purely speculation based on publicly available information. The information expressed is subject to change at any time and should be checked for completeness, accuracy and current applicability. For advice, consult a suitably licensed attorney and/or patent professional.