Using Insights from the History of Science to Redefine Patentable Subject Matter Under the IP Clause of the U.S. Constitution

NBL Annual IP Report (Bessatsu NBL), No. 123, 2008

34 Pages Posted: 11 Mar 2008 Last revised: 25 May 2014

Sean M. O'Connor

University of Washington - School of Law

Date Written: October 8, 2007

Abstract

Over the past few years, Congress, the Supreme Court, academics, and the public in the United States have become increasingly concerned with the scope of patentable subject matter. Various critiques based on notions of patent thickets, anti-commons, and upstream patents in particular argue that research is being hindered by excessive patenting of scientific and technological innovation. While empirical evidence supporting these claims is scant - indeed some recent research rebuts the claims - the concern that too much scientific innovation is being patented still resonates across society. This paper argues that a re-examination of the scope of the Progress (or IP) Clause in the U.S. Constitution with the aid of research and insights from the interdisciplinary field of history and philosophy of science opens the door for a new approach to patentable subject matter.

Keywords: patents, IP, patentable subject matter, progress clause, IP clause, history of science

Suggested Citation

O'Connor, Sean M., Using Insights from the History of Science to Redefine Patentable Subject Matter Under the IP Clause of the U.S. Constitution (October 8, 2007). NBL Annual IP Report (Bessatsu NBL), No. 123, 2008. Available at SSRN: https://ssrn.com/abstract=1104899

Sean M. O'Connor (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States
206-543-7491 (Phone)

HOME PAGE: http://www.law.washington.edu/faculty/oconnor

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