Nothing is Patentable

Abstract

The current test for whether abstract ideas or natural phenomena are patentable subject involves two steps. First, identify whether the claim is abstract or natural. Second, if so, then determine whether the patent claims a sufficiently inventive application of the idea or law.

This brief essay examines this test in two parts. The first part provides a review and response to Jeffrey Lefstin's article Inventive Application: A History. Professor Lefstin's historical analysis of the second step -- the inventive application test -- is illuminating. He shows that inventive application did not evolve in 19th-Century England, but rather a more unlikely and recent U.S. Supreme Court case: Funk Brothers Seed Co. v. Kalo Co. Professor Lefstin also questions the counter-meme that Funk Bros. is an obviousness case.

The second part of the paper takes Professor Lefstin's history and asks the question: is a new test necessarily a bad test? The answer -- for some at least -- may depend on whether the new test would invalidate patents that predated it. This part of the essay considers recent opinions that follow the two-step test. It then applies those methods to famous patents throughout history and shows that many of our best known patents might well be invalidated today -- even though most of them survived patent-eligibility challenges in their own time.

Keywords: patentable subject matter, abstract ideas, natural phenomenon