The Ontological Function of the Patent Document

69 Pages Posted: 3 Mar 2012

See all articles by Andrew Chin

Andrew Chin

University of North Carolina School of Law

Date Written: February 25, 2012


With the passage and impending implementation of the “first-to-file” provisions of the America Invents Act of 2011, the U.S. patent system must rely more than ever before on patent documents for its own ontological commitments concerning the existence of claimed kinds of useful objects and processes. This Article provides a comprehensive description of the previously unrecognized function of the patent document in incurring and securing warrants to these ontological commitments, and the respective roles of legal doctrines and practices in the patent system’s ontological project. Among other contributions, the resulting metaphysical account serves to reconcile competing interpretations of the written description requirement that have emerged from the Federal Circuit’s recent jurisprudence, and to explain why the patent system is willing and able to examine, grant and enforce claims reciting theoretical entities. While this Article is entirely descriptive, it concludes by identifying promising normative and prescriptive implications of this work, including the formulation of an appropriate test for the patent-eligibility of software-implemented inventions in the post-Bilski era.

Keywords: patents, written description, enablement, patentable subject matter, metaphysics

JEL Classification: O34

Suggested Citation

Chin, Andrew, The Ontological Function of the Patent Document (February 25, 2012). UNC Legal Studies Research Paper No. 2010987, Available at SSRN: or

Andrew Chin (Contact Author)

University of North Carolina School of Law ( email )

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