What Is 'Technology'?

53 Pages Posted: 4 Jan 2014 Last revised: 26 May 2014

Date Written: October 15, 2013

Abstract

Patent protection is limited to “technology,” but technology is so difficult to define that the Supreme Court has taken up the issue several times in the last several years. The Supreme Court’s recent decisions in Bilski, Prometheus, and Myriad have left patentable subject matter doctrine just as confused as ever, however. What is patentable technology?

The answer turns out to have nothing to do with the various pragmatic rationales that courts commonly cite. Rather, the patent system has defined patentable technology according to much simpler criteria – artifice and action. Artifice is the quality of being created by humans, not by nature. Action is the quality of behaving or operating in some active way. Together, artifice plus action explain and, perhaps more importantly, unify the law on patentable subject matter. By focusing on artifice plus action as the primary criteria defining patentable technology, the patent system can provide clearer guidelines than it has been able to achieve thus far.

Keywords: patent, patentable subject matter, technology, business methods, computers, software, genes, diagnostic methods, Myriad, Bilski, Prometheus

Suggested Citation

Morris, Emily Michiko, What Is 'Technology'? (October 15, 2013). Boston University Journal of Science and Technology Law, 2014; Indiana University Robert H. McKinney School of Law Research Paper No. 2014-1. Available at SSRN: https://ssrn.com/abstract=2374514

Emily Michiko Morris (Contact Author)

Penn State Dickinson Law ( email )

150 S. College St.
127F Lewis Katz Hall
Carlisle, PA 17013
United States
7172413532 (Phone)
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