The Paradox of 'Abstract Ideas'
Alan L. Durham
University of Alabama - School of Law
January 1, 2011
Utah Law Review, Vol. 2011, No. 3, p. 797, 2011
Since the 19th Century, courts have held that “abstract ideas” are not patentable subject matter. After the Supreme Court’s Bilski decision, the abstract ideas exclusion is more important than ever as a limitation on patents for computer-implemented business methods and other information-age technologies. But the long history of the abstract ideas exception is one of persistent obscurity, in part because, in important respects, all inventions are abstract ideas, and in part because courts have not consistently identified which of several policy goals is the proper focus of this non-statutory subject matter inquiry. If the principle concern is overbreadth, other patent doctrines – like the enablement and written description requirements – provide a better context for comparing the claimed invention to the patentee’s contribution to the art. On the other hand, if the principle concern is to deny patents to endeavors that are not technological, the courts should adopt an explicit definition of the “useful arts” subject to patenting, rather than defer to the perennial source of confusion that is the “abstract ideas” exception.
Number of Pages in PDF File: 57
Keywords: patents, software, business methods, patentable subject matter, abstract ideasAccepted Paper Series
Date posted: October 16, 2012
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