Intuitive Patenting

Abstract

Patentable subject matter determinations are ultimately based not on judicial doctrines and tests or statutes or even on precedent or the economic rationales underlying the patent system. Rather, the fundamental touchstone for what qualifies as patentable technology is simply intuition. Specifically, despite the Federal Circuit’s rejection of “technological arts” as a linguistically bright-line test, patentable subject matter decisions inevitably devolve into what is at base an intuitive sense of what constitutes technology of the type protectable under the patent system.