Confusing Patent Eligibility

90 Pages Posted: 13 Apr 2016 Last revised: 2 Jun 2017

See all articles by David O. Taylor

David O. Taylor

Southern Methodist University - Dedman School of Law

Date Written: March 1, 2016


Patent law — and in particular the law governing patent eligibility — is in a state of crisis. This crisis is one of profound confusion. Confusion exists because the current approach to determining patent eligibility confuses the relevant policies underlying numerous discrete patent law doctrines, and because the current approach lacks administrability. Ironically, the result of all this confusion is seemingly clear: the result seems to be that, when challenged, patent applications and issued patents probably do not satisfy the requirement of eligibility. At least that is the perception. A resulting concern, therefore, is that the current environment substantially reduces incentives to invest in research and development. Given this confusion, lack of administrability, and risk of under-investment in research and development, the time has come for Congress to amend the patent statute. In this Article, I lay the groundwork for an analysis of potential amendments to the patent statute by examining the root causes of the current confusion in this area of patent law. This groundwork is essential to resolving the present crisis.

Keywords: intellectual property, patents, eligibility, patentability, Supreme Court, Mayo, Alice

Suggested Citation

Taylor, David O., Confusing Patent Eligibility (March 1, 2016). Tennessee Law Review, Vol. 84, 2016, SMU Dedman School of Law Legal Studies Research Paper No. 265, Available at SSRN:

David O. Taylor (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States


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