Response to USPTO Request for Comments on Patent Eligibility Jurisprudence Study

The U.S. Patent and Trademark Office (USPTO) has requested public comments on “the current state of patent eligibility jurisprudence in the United States, and how the current jurisprudence has impacted investment and innovation.”We write as academics who have conducted empirical studies of the U.S. patent system. We have no relevant or material financial interests that relate to the research described in these comments. Rather, our interest is in seeing patent law develop in a way that improves social welfare, including by encouraging innovation and long-run productivity growth.Many have argued—largely based on anecdotes or descriptive data—that recent changes in patent eligibility caselaw have either increased or decreased innovation. Here, in comments drawn in part from Ouellette and Williams (2020), we argue that neither view is supported by the available empirical evidence. Answering the question of whether limits on patent eligibility increase or decrease innovation requires specifying a counterfactual of how innovation would have evolved in the absence of these caselaw changes. Anecdotes and descriptive data are unable to provide such a counterfactual, and related empirical studies that do develop a rigorous counterfactual framework do not purport to answer the broad policy question of whether limits on patent eligibility increase or decrease innovation