44 Pages Posted: 8 Oct 2009
Date Written: August 7, 2009
The patent statutes were wisely drafted with an expansive vision of patentable subject matter. Efforts to graft judicially created limitations onto that expansive scope in the past have proven fruitless and indeed counterproductive. In deciding Bilski v. Doll, the Supreme Court should not impose a requirement that patentable inventions require a machine or the physical transformation of some material. It should instead maintain the rule that patents are available for "anything under the sun made by man," including discoveries of ideas, laws of nature, or natural phenomena, so long as they are implemented in a practical application. In short, the test should be as it has been: where an idea is claimed as applied, it is eligible for patentability, but if it is claimed merely in the abstract it is not.
Keywords: patentable subject matter, Bilski, patent eligibility, business method patents, software patents
JEL Classification: K3, O3
Suggested Citation: Suggested Citation
Lemley, Mark A. and Risch, Michael and Sichelman, Ted M. and Wagner, R. Polk, Brief Amici Curiae of 20 Law and Business Professors in Support of Neither Party in Bilski v. Doll (August 7, 2009). Stanford Public Law Working Paper No. 1485043. Available at SSRN: https://ssrn.com/abstract=1485043 or http://dx.doi.org/10.2139/ssrn.1485043