"Why was this unrelated Section 4(a) on the judicially created non-statutory doctrine of ODP placed under a heading that was untethered to its contents-and thus didn't alert the reader to look over here? How does the header "Rules of Construction" highlight to the reader that the bill is now moving from one subject-Patent Eligibility-to a completely different subject with its own labyrinth of constitutional and statutory problems-so-called judicially created ODP?"
"Since its introduction in 2023, the pro-patent community has broadly supported what the draft Patent Eligibility Restoration Act (PERA) said. However, a potentially monumental, unrelated rider seems to have crept in on the last page of the 2025 version: "Sec. 4. RULES OF CONSTRUCTIONOBVIOUSNESS-TYPE DOUBLE PATENTING.- Nothing in this Act, or any amendment made by this Act, may be construed to affect or alter the judicially-created doctrine of obviousness-type double patenting.""
A rider in the 2025 PERA draft preserves the judicially-created obviousness-type double patenting doctrine, inserting an unrelated provision into patent-eligibility legislation. The rider's phrasing omits the term non-statutory while purporting to leave the doctrine unaffected by the Act. The provision appears under a heading that does not reflect its substantive content, obscuring a shift from patent eligibility to double patenting issues. Concerns arise over constitutional and statutory complications tied to a judicially-created doctrine that was not promulgated through proper procedures. A proposal calls for deleting the rider and subjecting the doctrine to independent Congressional and stakeholder review.
Read at IPWatchdog.com | Patents & Intellectual Property Law
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