The Supreme Court of the United States (SCOTUS) has made key holdings in recent years that limit the protections provided by patents. Not everyone is happy with the Court’s impact on patent protections. As a result, further changes may be coming.

How can we change a system that is swinging away from patent protections? Our founding fathers designed our country’s system with checks and balances. Lawmakers have options when they disagree with how the highest court in the country is applying the laws that are currently in place.

One option currently under consideration: write a new law.

What would this new law look like? There is much speculation, but two possibilities include:

  1. Expand patent protections for subject matter. If the lawmakers behind the proposal have their way, the protections available to patent holders may expand in the near future. The law would broaden the definition of what things qualify for patent protection, referred to as subject matter.
  2. Shift to specify what is not protected. Instead of listing what types of subject matter are eligible for protections, a new law may include a list of specific exclusions. This would result in an “approved unless falls into an exception” type of approach to the subject matter proposed within an application for patent protection.

A shift toward focusing on exclusions could cause problems. A recent publication in Above the Law points out an overly narrow list of exclusions could result in a constitutional challenge under Article I Section 8. Clause 8, the Patent and Copyright Clause of the Constitution. This clause states that Congress has the power to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” If patent protections are too broad, opponents may argue the law no longer “promotes the progress of science.”