Flook Says One Thing, Diehr Says Another: A Need for Housecleaning in the Law of Patentable Subject Matter

32 Pages Posted: 15 Feb 2015

See all articles by John M. Golden

John M. Golden

University of Texas at Austin - School of Law

Date Written: 2014

Abstract

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

Suggested Citation

Golden, John M., Flook Says One Thing, Diehr Says Another: A Need for Housecleaning in the Law of Patentable Subject Matter (2014). George Washington Law Review, Vol. 82, No. 6, 2014, U of Texas Law, Public Law Research Paper No. 623, Available at SSRN: https://ssrn.com/abstract=2564821

John M. Golden (Contact Author)

University of Texas at Austin - School of Law ( email )

School of Law
727 East Dean Keeton Street
Austin, TX 78705
United States
(512) 232-1469 (Phone)

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