101 South – A quick roundup of Patent Eligibility news

Written by Ben Esplin

A few previous blog posts have been related to patent eligibility analysis (allegedly) under 35 U.S.C. § 101 (here, here, and here). Since this particular extra-statutory, judicially-created requirement for patentability impacts our work at Esplin & Associates every working day, and the current status and state of application of this requirement is discussed with clients regularly, I have decided to create a series of short digest of events I believe to be most noteworthy regarding the Patent Eligibility Requirement.

RECENTIVE v FOX

In April, the Court of Appeals for the Federal Circuit (“CAFC”) issued a decision that is not positive for patent applicants looking to protect extension of machine-learning technology into new fields and contexts (Recentive Analytics v. Fox Corp.; “Recentive”). In fact, the CAFC made the holding much broader than the question actually presented in the case, and Judge Dyk writes:

This case presents a question of first impression: whether claims that do no more than apply established methods of machine learning to a new data environment are patent eligible. We hold that they are not.

This is the broadest and most overreaching statement in this decision by Judge Dyk painting with one of his widest brushes, but it is certainly not the only one.

Last week, the patent holder filed a combined request for panel rehearing and rehearing en banc. The request is covered well and in some detail on IP Watchdog. Hopefully, this request is taken seriously, given the significance of the somewhat unnecessary breadth of the stated “holding” of the decision.

PATENT ELIGIBILITY RESTORATION ACT OF 2025

The Patent Eligibility Restoration Act of 2025 (“PERA 2025”) was introduced Thom Tillis (R-NC) and Chris Coons (D-DE) on May 1, 2025, in both the House and Senate. Last week on June 17, 2025, Senators Marsha Blackburn (R-TN) and Mazie Hirono (D-HI) signed on as co-sponsors of the Bill. PERA 2025 would completely do away with the “abstract idea exception” of the Patent Eligibility Requirement that has proven to be a massive obstacle for innovation in computer-implemented inventions, like artificial intelligence, data science, fintech, and other bleeding edge technologies. It is unlikely PERA 2025 proceed through Congress with any alacrity, but we can keep our fingers crossed.