The Future of Innovation Rights?
PERA, PREVAIL, and What’s at Stake

September 3, 2025

For more than a decade, businesses have lived with uncertainty about whether their most important innovations—particularly in diagnostics, biotechnology, artificial intelligence, and software—qualify for patent protection. At the same time, once a patent is granted, challenges at the Patent Trial and Appeal Board (PTAB) have left many rights fragile and unpredictable. Two bills now moving through Congress, the Patent Eligibility Restoration Act (PERA) and the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act, aim to reset both ends of this equation. Together, they could reshape not only how patents are obtained but also how durable they prove to be once granted. For innovators, investors, and patent owners, what’s at stake is nothing less than the future of innovation rights in the United States.

Rethinking Patent Eligibility Under PERA

PERA would move eligibility determinations back to the text of the Patent Act, eliminating the judicial exceptions that have excluded broad categories of inventions. For clients in diagnostics, biotechnology, software, and artificial intelligence, this could reopen doors that were effectively closed under the current two-step test. A diagnostic method previously deemed “a natural law” or a machine-learning process written off as “too abstract” could, under PERA, be evaluated on its real-world utility rather than an unpredictable doctrinal filter.

For businesses, this means it may be time to revisit applications that were abandoned after Section 101 rejections or to consider whether pending R&D projects now have stronger prospects for protection. While eligibility would still not guarantee a patent—novelty, non-obviousness, and written description requirements remain—PERA could shift the starting line in favor of innovators.

A New Playing Field for PTAB Challenges Under PREVAIL

If PERA broadens the front door, PREVAIL reshapes the back end of the system by tightening post-grant review. PREVAIL would require challengers at the PTAB to show standing, stop the practice of serial petitions against the same patent, and raise the evidentiary burden for invalidation to “clear and convincing evidence.” It would also harmonize PTAB claim interpretation with the standards used in district court, reducing the inconsistency patent owners often face.

For clients, the impact is practical. A pharmaceutical company defending a blockbuster drug patent could see fewer duplicative challenges at PTAB. A startup with a valuable software patent would have greater confidence that once granted, the patent could not be picked apart through multiple, coordinated reviews. On the flip side, companies that have relied on PTAB to challenge weak patents—such as generic manufacturers seeking to clear paths for entry—would find the process more limited and more costly.

Balancing Opportunity and Risk

These reforms will not be uniformly positive or negative. Broader eligibility under PERA could encourage innovation but also raises the possibility of an uptick in low-quality patents. A more restrictive PTAB under PREVAIL could give inventors stronger assets, but it could also make it harder to clear the market of patents that should not have been granted in the first place.

From a client perspective, the key is preparation. Companies should begin auditing portfolios to identify technologies that might benefit from PERA’s expanded eligibility. Past claims rejected under Alice or Mayo may deserve a second look. Those holding valuable patents should assess how PREVAIL could change enforcement and licensing strategies. And investors should consider how both reforms may alter IP valuation in transactions.

What's at Stake

If PERA becomes law, more innovations in fields like diagnostics, biotech, AI, and software could move past the eligibility hurdle and secure meaningful protection. PREVAIL, in turn, would change the way those patents are challenged, giving patent owners greater confidence that their rights will hold up against attack. For clients, this combination could expand opportunities to build stronger portfolios, enhance the value of intellectual property in transactions, and shift the dynamics of enforcement.

But with broader eligibility and tougher challenge standards comes responsibility. Companies will need to think strategically about what to claim, how to draft applications, and how to prepare for disputes in a more patent-owner-friendly environment. The future of innovation rights in the U.S. is still being written, and the details of PERA and PREVAIL may evolve as Congress debates them. What’s clear now is that businesses that start planning early—by reviewing portfolios, revisiting past rejections, and anticipating changes to litigation and licensing—will be best positioned to thrive in whatever landscape emerges.