The PERA and PREVAIL Acts Would Make Bad Patents Easier to Get—and Harder to Fight

Two dangerous bills have been reintroduced in Congress that would reverse over a decade of progress in fighting patent trolls and making the patent system more balanced. The Patent Eligibility Restoration Act (PERA) and the PREVAIL Act would each cause significant harm on their own. Together, they form a one-two punch—making it easier to obtain vague and overly broad patents, while making it harder for the public to challenge them.

These bills don’t just share bad ideas—they share sponsors, a coordinated rollout, and backing from many of the same lobbying groups. Congress should reject both.

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PERA Would Legalize Patents on Basic Software—and Human Genes

PERA would overturn long-standing court decisions that have helped keep some of the worst patents out of the system. This includes the Supreme Court’s Alice v. CLS Bank decision, which bars patents on abstract ideas, and Myriad v. AMP, which correctly ruled that naturally occurring human genes cannot be patented.

Thanks to the Alice decision, courts have invalidated a rogue’s gallery of terrible software patents—such as patents on online photo contests, online bingo, upselling, matchmaking, and scavenger hunts. These patents didn’t describe real inventions—they merely applied old ideas to general-purpose computers.

PERA would wipe out the Alice framework and replace it with vague, hollow exceptions. For example: it would ban patents on “dance moves” and “marriage proposals,” but would allow nearly anything involving a computer or machine—even if it only mentions the use of a computer. This is the same language used in many bad software patents that patent trolls have wielded for years. If PERA passes, patent claims  that are currently seen as weak will become much harder to challenge. 

Adding to that, PERA would bring back patents on human genes—exactly what was at stake in the Myriad case. EFF joined that fight, alongside scientists and patients, to prevent patents that interfered with essential diagnostic testing. Congress should not undo that victory. Some things just shouldn’t be patented. 

PERA’s requirement that living genes can constitute an invention if they are “isolated” is meaningless; every gene used in science is “isolated” from the human body. This legal wordplay was used to justify human gene patents for decades, and it’s deeply troubling that some U.S. Senators are on board with bringing them back. 

PREVAIL Weakens the Public’s Best Defense Against Patent Abuse

While PERA makes it easier to obtain a bad patent, the PREVAIL Act makes it harder to get rid of one.

PREVAIL would severely limit inter partes review (IPR), the most effective process for challenging wrongly granted patents. This faster, more affordable process—administered by the U.S. Patent and Trademark Office—has knocked out thousands of invalid patents that should never have been issued.

EFF has used IPR to protect the public. In 2013, we challenged and invalidated a patent on podcasting