Patentable Subject Matter as a Policy Driver
43 Pages Posted: 28 Oct 2015 Last revised: 18 Jan 2016
Date Written: October 25, 2015
Patents are intended to be used as instruments to further policy. One potent policy driver to accomplish such goals is through the legal construction and application of the term "invention." Internationally, various legal authorities have recognized that this definition can be crafted in ways that are targeted to have real-world consequences. In the U.S., the open-ended framework of the Patent Act's section 101 invites judicial interpretation to effectuate the law's purposes. Ideally, these determinations should rest on articulated, transparent reasoning so that, under a common law system, those policies can serve as touchstones to ensure that the relevant precedents are implementable. Despite this potential power, recent U.S. Supreme Court opinions have not used the doctrine to meaningfully guide the patent system. Rather, the Court's recent cases place primary emphasis on a selection of precedents that were written in an era that does not account for our current understandings of scientific, economic, and sociologic progress. This Article argues that these are missed opportunities and proposes four policy guideposts for consideration in future cases: (1) fostering scientific creativity; (2) encouraging the creation of an infrastructure; (3) balancing the patent system with free competition concerns; and (4) considering current social needs.
Keywords: Patent, Innovation, Intellectual Property, Patentable Subject Matter, Economics
JEL Classification: K20
Suggested Citation: Suggested Citation