Brief Amici Curiae of 20 Law and Business Professors in Support of Neither Party in Bilski v. Doll

44 Pages Posted: 8 Oct 2009  

Mark A. Lemley

Stanford Law School

Michael Risch

Villanova University Charles Widger School of Law

Ted M. Sichelman

University of San Diego School of Law

R. Polk Wagner

University of Pennsylvania Law School

Date Written: August 7, 2009

Abstract

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

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

Mark A. Lemley

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Michael Risch

Villanova University Charles Widger School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

HOME PAGE: http://www1.villanova.edu/villanova/law/academics/faculty/Facultyprofiles/MichaelRisch.html

Ted M. Sichelman (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
(619) 260-7512 (Phone)
(619) 260-2748 (Fax)

HOME PAGE: http://https://www.sandiego.edu/law/faculty/profiles/bio.php?ID=795

R. Polk Wagner

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
267-433-4431 (Phone)

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