Flook Says One Thing, Diehr Says Another: A Need for Housecleaning in the Law of Patentable Subject Matter
32 Pages Posted: 15 Feb 2015
Date Written: 2014
In a series of recent cases, the U.S. Supreme Court has made clear that there are substantial constraints on the categories of actions and materials for which patent protection may be afforded. But the Court has not provided clear instruction on how to implement these constraints. The Court can do better, and this Essay describes how the Court can perform judicial housecleaning that improves the state of the law on patentable subject matter. The Essay indicates the plausibility of judicial adoption of these proposals by showing how they comport with reasonable understandings of recent Supreme Court opinions and with concerns that Supreme Court Justices have voiced during oral argument.
Keywords: Patentable Subject Matter, Subject-Matter Eligibility, Supreme Court, Patent, Mayo, Prometheus, Alice
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