A Uniform Framework for Patent Eligibility
The Ohio State University
December 1, 2010
Tulane Law Review, Vol. 85, No. 2, 2010
There is a need to clarify patent law so as to advance resolution of its most fundamental question – delineating the categories of subject matter that are eligible for patent protection. Coupled with the active role the Supreme Court has taken in examining this precise issue, individuals and non-profit organizations have galvanized a public discourse through constitutional challenges to the issuance of various biotechnology patents. Despite a statutory framework that has remained constant since 1793, courts have been unable to create a comprehensive test for determining patent-eligible subject matter that accurately embodies the foundational principles that underlie the federal grant of patents. I argue that the proximate cause of the lack of an appropriate framework is the failure of courts to clearly define the statutory categories and the absence of a technology-agnostic method of analyzing whether an invention claims ownership over a product of nature. This Article sets forth a uniform framework that addresses patent-eligible subject matter through the creation of a practical methodology that focuses on these two principles. The advantages of the proposed framework are highlighted through the application of the framework to traditional inventions and emerging biotechnologies.
Number of Pages in PDF File: 89
Keywords: patent law, patentable subject matter, product of nature doctrine, patent validity, patent theory, patent policy
JEL Classification: O34Accepted Paper Series
Date posted: December 4, 2010
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