Patent Eligibility Restoration Act (PERA)

<p>The <strong>Patent Eligibility Restoration Act (PERA)</strong> is <strong>proposed U.S. federal legislation</strong> — not current law — that would rewrite 35 U.S.C. § 101 to replace the judge-made "abstract idea" and "law of nature" exceptions with a shorter, closed list of statutory exclusions. It has been introduced, in varying forms, across the 116th, 118th, and 119th Congresses without being enacted. The current version, <strong>S. 1546 (119th Congress, 2025–2026)</strong>, was reintroduced on May 1, 2025 by Senators Thom Tillis (R-NC) and Chris Coons (D-DE) and Representatives Kevin Kiley (R-CA) and Scott Peters (D-CA). The Senate Judiciary Subcommittee on Intellectual Property held a hearing on the bill on October 8, 2025; as of this writing it has not been marked up by the full committee, passed by either chamber, or signed into law. A page that treats PERA as settled law would be factually wrong — its defining characteristic, for research-administration purposes, is that it is a live legislative proposal responding to an unresolved doctrinal problem, not a rule anyone can rely on yet.</p><h2>The problem PERA is written to address</h2><p>Under current § 101 doctrine, the Supreme Court's <em>Mayo Collaborative Services v. Prometheus Laboratories</em> (2012) and <em>Alice Corp. v. CLS Bank International</em> (2014) decisions established a two-step framework (often called the "Alice/Mayo test" or, in USPTO examination guidance, "Step 2A/Step 2B") that lets an examiner or court invalidate a claim as directed to an unpatentable "abstract idea," "law of nature," or "natural phenomenon" even though those categories appear nowhere in the patent statute itself — they are judicial exceptions layered on top of § 101's text. See CASRAI's <a href='/guides/35-usc-101-patentable-subject-matter'>35 U.S.C. § 101: Patentable Subject Matter and the Alice/Mayo Eligibility Test</a> for the current test as it actually operates today. Critics across the patent bar, technology-transfer offices, and biotech/software industry groups argue the resulting case law is inconsistent and hard to predict at the claim-drafting stage, disproportionately affecting <strong>diagnostic methods</strong>, <strong>software and AI-related inventions</strong>, and certain <strong>life-sciences discoveries</strong> — exactly the categories a university technology transfer office most often needs to protect before licensing.</p><h2>What PERA proposes to change</h2><p>Rather than amending the Alice/Mayo case-law test directly, PERA's approach is to eliminate judicially-created exceptions from § 101 entirely and substitute a short, enumerated list of statutory exclusions from eligibility (categories such as claims to an unmodified human gene as it exists in the human body, or to a mathematical formula standing alone, are the kind of exclusion prior versions of the bill have specified) while otherwise stating that a claimed invention is eligible if it falls within one of the statute's existing categories (process, machine, manufacture, or composition of matter) and is not excluded. Sponsors describe the goal as restoring eligibility for practical, real-world applications in fields like AI, biotechnology, and diagnostics without reopening genuinely abstract claims to patenting. Because PERA has been revised between reintroductions, the exact exclusion list and definitions in the live S. 1546 text should be checked directly against <a href='https://www.congress.gov/bill/119th-congress/senate-bill/1546/text' rel='noopener'>the bill text on congress.gov</a> rather than assumed to match an earlier version.</p><h2>Why this matters for university tech transfer specifically</h2><p>A technology transfer office evaluating whether to patent a faculty invention has to make a § 101 eligibility judgment long before litigation is ever a possibility — at invention-disclosure triage, at the provisional-filing decision, and again when licensing counsel diligence the claims. Diagnostic-method inventions (a correlation between a biomarker and a disease state) and software/AI inventions (a novel algorithm or model architecture) are the two categories most exposed to Alice/Mayo rejections today, which in turn affects a TTO's practical calculus on whether patenting is worth the cost relative to protecting the same invention as a trade secret or relying on a first-mover/know-how advantage instead. PERA, if enacted, would not retroactively revive an invention a TTO already declined to patent under current doctrine — patentability is assessed as of filing — but it would change the eligibility calculus for inventions disclosed and filed after any effective date, and could affect prosecution strategy for pending applications depending on the bill's final transition provisions. None of that is triggered by introduction or a committee hearing; only enactment would change what is patentable.</p>

ByCASRAI Editorial Board

· Last updated 18 Jul 2026

Examples

Worked examples

Is an instance
A university TTO evaluating a diagnostic-biomarker invention disclosure in 2026 tracks PERA's progress through Congress because, if enacted with the exclusion list currently under discussion, it could make claims that a § 101 rejection would likely doom today more clearly eligible — changing whether the invention is worth patenting versus protecting as a trade secret. This is illustrative of how TTOs use pending legislation as one input to a filing decision; it does not describe any real, named institution's actual case.
Is an instance
S. 1546, the Patent Eligibility Restoration Act of 2025, introduced in the Senate on May 1, 2025 by Sens. Tillis and Coons, referred to the Senate Judiciary Committee, and the subject of a Judiciary Subcommittee on Intellectual Property hearing on October 8, 2025 — a real, verifiable instance of PERA's current legislative posture as of this writing.

Counter-examples

Looks similar, but isn't

Not an instance
The America Invents Act (AIA) of 2011 is NOT an example of PERA or of pending patent-eligibility legislation — it is enacted law (Public Law 112-29) that already reformed a different part of patent practice (first-to-file priority, post-grant review proceedings). Citing the AIA as though it resolved the § 101 eligibility question PERA targets is a common conflation to avoid: the AIA did not touch § 101 subject-matter eligibility at all.
Not an instance
USPTO's 2019 Revised Patent Subject Matter Eligibility Guidance is NOT PERA. It is internal examination guidance the USPTO itself issued to standardize how examiners apply the existing Alice/Mayo case law — it works within current § 101 doctrine and has no power to override the Supreme Court's precedent the way an actual statutory amendment like PERA would.

Machine-readable encodings

Use in your systems

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